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DOMESTIC AND FOEETGN RELATIONS 



UNITED STATES. 



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By JOEL jP \.KKER. 



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THE 



DOMESTIC AND FOREIGN RELxiTIONS 



UNITED STATES. 



By JOEL PARKER. 

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WELCH, BIGELOW, AND COMPANY, 

PKINTEKS TO THE UNIVEKSITY. 

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£14 G^ 



Memorandum. — The substance of the first part of the following Tract was 
contained in a Lecture delivered to the students in the Law School of Harvard 
College, by the author, as Royall Professor of Law in that Institution, on the 25th 
of June, 1861. Subsequent events have led to an enlargement of it, and to its 
publication in the January number of the North American Review. It is now 
issued as a separate Article, a single paragraph being omitted because it was little 
more than a repetition of what was expressed elsewhere, and some Notes being 
added in an Appendix. 

Cambridge, January 1, 1862. 



THE DOMESTIC AND FOREIGN RELATIONS 



UNITED S TAT E S. 



It may be stated as a result of our examination of the 
alleged Right of" Secession, that the people of the several 
States composing the United States, under the Constitution, 
— whether that instrument be regarded as an organic law, or 
as a compact, — form an entire Nation, for the purposes for 
which they are thus united ; while under their State organiza- 
tions they exercise many powers of sovereignty, of a political 
and municipal character, some of which are subordinate to the 
powers of the General government, and others independent of 
that government because they do not fall within the scope of 
the purposes for which it was organized, and all " powers not 
delegated to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States respec- 
tively, or to the people." 

This nation has, for the accomplishment of the objects of its 
existence, all the attributes of sovereignty. The Constitution — 
providing that itself shall be the supreme law of the land, and 
binding upon all the judges of the several States, anything in 
the constitution or laws of any State to the contrary notwith- 
standing ; requiring all the legislators, and executive and judi- 
cial officers of the United States, and of the several States, to 
take an oath or affirmation to support it ; and defining what 



shall constitute treason against the United States — shows that, 
so far as the objects and purposes of the national government 
extend, an allegiance is due to that government from all the 
citizens within its limits, paramount to and exclusive of any 
allegiance due to the several States ; because the allegiance to 
the State arises under the State organization and constitution, 
which, to the extent covered by the Constitution of the United 
States, are subordinate to the authority of the United States, 
under that Constitution. There can be, therefore, no right on 
the part of any State, or of the people of any State, through 
or by any State authority or action, or by any popular vote, to 
terminate this allegiance to the United States. 

The Union under the Constitution being perpetual and in- 
dissoluble, it is to be subverted only by the exercise of the 
right of revolution, for sufficient cause. And this right of rev- 
olution is a personal, and not a State right, and of an imperfect 
character ; for an attempt at revolution is legally, in its incep- 
tion, and until it is attended with success, neither more nor 
less than rebellion against the existing government, which of 
course has at least an equal right to resist the attempt by all 
the forces at its command. It follows, therefore, that those 
persons who have been active in the attempted secession of the 
several States have, as respfects the United States, no authority 
derived from any State organization ; nor any exemption, 
through the color of any exercise of State authority, from 
the ordinary consequences which attach to an insurrection or 
rebellion. No convention of the people- of a State could con- 
fer any authority to resist the government of the United States, 
in the full exercise of its functions, in all of its departments, 
legislative, executive, and judicial ; and still less could any act 
of a State legislature give any color of legal authority for 
such resistance, whether such legislature assumed to act un- 
der the State constitution as it existed before the attempted 
secession, or under the authority of a convention which, hav- 
ing declared the secession, assumed to confer new legislative 



powers, or to adopt a new constitution. All persons who have 
placed themselves in hostility to the United States by acts of 
war, are of course responsible personally for those acts, as 
rebels and traitors. The State which they assume to represent 
is not responsible, because the State, as a State, did not, and 
could not, in any mode, give authority to commit acts of rebel- 
lion and treason. There is no war between any State, admit- 
ted into the Union, and the United States ; because the State 
itself — the legal, constitutionally organized State — is not in 
rebellion ; and there is therefore no authority to confiscate the 
property of any State, as State property, for any such State of- 
fence. The persons who have seized upon the State organiza- 
tion for the purposes of rebellion, and who wield an apparent 
State authority for such purposes, — who have, moreover, cre- 
ated a confederation under this usurpation, and style them- 
selves governors and senators, generals and captains, president 
and secretaries, — are in no manner shielded by their titles or 
offices from the punishment due to their acts of treason, which 
are, in fact, in more senses than one, committed on private 
account. 

This serves to show that the proclamation of President Lin- 
coln, treating the seizure of forts, arsenals, and dock-yards, 
and the bombardment of Fort Sumter, as acts of insurrection, 
and requiring those concerned in them to retire peaceably to 
their respective abodes, was not only in precise accordance 
with the requisition of the statute of 1795, but was founded 
upon the only correct legal view of the existing state of things 
which called it forth. The acts of hostility against the gov- 
ernment had, perhaps, assumed such formidable proportions 
as to be appropriately designated as war ; but it was a war of 
persons owing allegiance to the general or national govern- 
ment, and not a war of governments. Those acts were not 
more than acts of treason because millions were engaged in 
them, and they were not less than acts of treason because of 
the assumed titles, military and civil, or of the assumption of 



State or Confederate authority, under color of which they were 
committed. There were millions of people in India engaged 
in a war against the government of Great Britain, within a 
short period ; and most of .them acted under the orders of per- 
sons who stood to them in the relation of kings and princes, 
for certain purposes, having recognized authority for such 
purposes, but who had no authority for the objects and pur- 
poses of such a war; and they were all, kings, princes, and 
sepoys, held alike as rebels against the paramount govern- 
ment, — their guilt differing only in degree, according to the 
circumstances of enormity attending it. We do not inquire 
into the causes of that revolt, when we consider the case in its 
political and legal aspects in regard to the United States. 
That is a matter between the persons engaged in it and Great 
Britain. The government of the United States has nothing to 
dread from such an inquiry, in the present instance ; but other 
nations will not enter into that inquiry, and it is foreign to 
our immediate purpose. 

We perceive, therefore, that the criticism upon the procla- 
mation of the President requiring the rebels to disperse, that 
it addressed its command in fact to millions, and that it was 
preposterous to require such large numbers, like an ordinary 
mob, to retire to their places of abode ; and that other criti- 
cism which assumed that the States were the actors in the war- 
fare which was waged, and that the statute and the proclama- 
tion could not apply, because the States had no abodes to retire 
to, — fail entirely of their intended force. Rebels may form 
political associations for themselves, and may assume to have a 
government for which they ask and claim recognition. They 
may, as between themselves, wield the powers of a State gov- 
ernment, if they can usurp the State authority, and use it as if 
they were the rightful possessors of it. They may thus have 
a government de facto, and it may be, as among themselves, 
de jure also. But all this does not change their legal relations 
to the government against which they are in arms, until they 



have by their power accomplished the purpose of the insurrec- 
tion, by a practical maintenance of their assumed indepen- 
dence. 

We deduce from these premises the conclusion, that, as re- 
gards the United States, there is no right in any organization 
which these rebels and traitors have constituted — whether 
designated as State or Confederation — to enact a law, or to 
adopt an ordinance, which shall be recognized by the United 
States as having force or effect as a legal enactment, or as con- 
ferring upon any person power to be used in hostility to the 
existing government. There can be no lawful confederation 
of the States involved in the attempted secession, because there 
has been no secession of those States which is recognized as 
having any validity. They still remain as component parts of 
the United States, having doubtless a large loyal population, 
although the violence of the insurgents has for a time sus- 
pended the due exercise of the authority of the United States, 
and that of the State also, by a usurpation of the powers of 
the latter, and an exercise of the semblance of authority under 
the State organization. As States in the Union, the Constitu- 
tion expressly forbids any confederation among them ; and for 
that reason also, if there had been no insurrection, and no at- 
tempt to array State authority against the national govern- 
ment, the confederation of the States would be unconstitu- 
tional ; the self-styled Congress of the Confederate States an 
unauthorized body ; and the so-called President of that con- 
federation, and his cabinet councillors, suitable subjects for 
the criminal jurisprudence of the United States, on an indict- 
ment for a conspiracy, — if their acts of war had not made 
them liable to the graver penalty attached to treason. 

As a necessary consequence of all this, the proclamation of 
Mr. Jefferson Davis, calling himself President of the Confed- 
erate States, in which he invited applications for letters of 
marque and reprisal against the United States, — or, in other 
words, in a legal view, Mr. Davis's advertisement for pro- 



8 

posals to rob, under his sanction, such citizens of the United 
States as might have property afloat, — was no better than 
the advertisement of any other private person ; and the letters 
of marque and reprisal issued by him as President, and coun- 
tersigned by R. Toombs as if he were a Secretary of State, 
are, as respects the United States, no better than so much 
waste paper, for the justification and protection of those who 
capture property under them. Such persons are amenable 
to the laws of the United States as pirates, under the act of 
Congress of 1790, Chapter 9. 

The eighth section of that statute provides that, " if any per- 
son or persons shall commit upon the high seas, or in any 
river, haven, basin, or bay out of the jurisdiction of any par- 
ticular State, murder or robbery, or any other offence which, 
if committed within the body of a county, would by the laws 

of the United States be punishable with death ; every 

such offender shall be deemed, taken, and adjudged to be a 
pirate and felon, and, being thereof convicted, shall suffer 
death." The ninth section enacts that, " if any citizen shall 
commit any piracy or robbery aforesaid, or any act of hostility 
against the United States, or any citizen thereof, upon the 
high sea, under color of any commission from any foreign 
prince or state, or on pretence of authority from any person, 
such offender shall, notwithstanding the pretence of any such 
authority, be deemed, adjudged, and taken to be a pirate, 
felon, and robber, and on being thereof convicted shall suffer 
death." 

The insurgents are not absolved from responsibility under 
this statute by the fact that their offences were committed in 
the course of what in other aspects may have the character of 
war, nor by the fact that they have been taken prisoners in 
that war. 

Martens admits the right of the conqueror to take the lives 
of prisoners in three cases : — 

"1. When sparing their lives is inconsistent with his own safety; 



9 

2. in cases where he has the right to exercise the talio or to make re- 
prisals ; 3. when the crime committed by those who fall into his hands 
justifies the taking of their lives." — Summary of the Law of Nations, 
Chap. 3, Sect. 4. 

Vattel concedes a right to punish prisoners who have been 
personally guilty of some crime against the captor. 

" Prisoners may be secured, and, for this purpose, they may be put 
into confinement, and even fettered if there be reason to apprehend that 
they will rise upon their captors or make their escape. But they are 
not to be treated harshly, unless personally guilty of some crime against 
him who has them in his power. In this case he is at liberty to punish 
them ; otherwise he should remember that they are men, and unfortu- 
nate."— Book III. Chap. 8, Sect. 150. 

It is by no means clear that those who come under the con- 
demnation of this statute of 1790 by acts of force and plun- 
der on board the Confederate privateers, would not be liable 
to the same condemnation under the rules of public law ; for 
although a pirate is generally described as hostis humani gene- 
ris, because the buccaneer ordinarily makes war indiscrimi- 
nately upon the vessels of all nations, yet if a band of sea-rob- 
bers should confine their depredations to the commerce of a 
single nation, it would seem that, as to that nation, their crime 
might well be regarded as piracy, even if other nations whose 
commerce was not assailed did not so regard it. 

It may be asked wherein consists the material difierence 
between persons who act under a privateer's commission, and 
capture property on the high seas, and those who wage war 
upon the land, and commit homicide, and burn, destroy, or 
capture property there. Why should the former when taken 
be held and treated as pirates, and the others when captured 
held and exchanged as prisoners of war ? It is a sufficient 
answer to this to say, that the war of the privateer is mainly 
upon the property of private persons, by private parties, for 
their private emolument. If the privateer attack a public 
2 



10 

vessel, it is the exception, and not the rule ; she is not commis- 
sioned with that view. . On the other hand, the war of the 
land forces is of a more public character, such as fighting hat- 
ties offensive or defensive, assaults upon forts and batteries, 
and the like, and their interference with private property is 
usually incidental to those more direct and public operations. 
The object of the hostilities waged by privateers is mainly gain, 
by the plunder of commercial vessels ; the injury done to the 
enemy being only incidental to that object. The object of the 
military operations upon land is ordinarily the public object 
of the war, whatever that may be, the injury done to private 
property being incidental to the measures taken for that pur- 
pose. If, then, the hostilities of the privateer are not regarded 
as war under lawful authority, they have the character of pri- 
vate acts, to wit, murder and robbery. 

Letters of marque and reprisal were originally granted to 
merchants who had lost goods by capture, in order that they 
might indemnify themselves by capture of the property of sub- 
jects of the offending nation. They were, and may still be, 
used before a war, as a means of procuring justice for a wrong 
or injury sustained by a nation, its citizens or subjects ; but 
a resort to this measure presupposes the existence of such 
wrong or injury. 

" When a nation cannot obtain justice, whether for a wrong or an 
injury, she has a right to do herself justice. But before she declare 
war (of which we shall treat in the following Book), there are various 
methods practised among nations, which remain to be treated of here. 
Among those methods of obtaining satisfaction has been reckoned what 
is called the law of retaliation, according to which we make another 
suffer precisely as much evil as he has done 

" Let us say, then, that a nation may punish another which has done 
her an injury, as we have shown above (see Chap. IV. and VI. of this 
Book), if the latter refuses to give a just satisfaction ; but she has not 
a right to extend the penalty beyond what her own safety requires. 
Retaliation, which is unjust between private persons, would be much 



11 

more so between nations, because it would, in the latter case, be difficult 
to make the punishment fall on those who had done the injury. What 
right have you to cut off the nose and ears of the ambassador of a bar- 
barian who had treated your ambassador in that manner ? As to those 
reprisals in time of war which partake of the nature of retaliation, they 
are justified on other principles ; and we shall speak of them in their 
proper place." — Vattel, Book II. Chap. XVIII. Sect. 339. 

" Reprisals are used between nation and nation, in order to do them- 
selves justice when they cannot otherwise obtain it. If a nation has 
taken possession of what belongs to another, — if she refuses to pay a 
debt, to repair an injury, or to give adequate satisfaction for it, — the 
latter may seize something belonging to the former, and apply it to her 
own advantage till she obtains payment of what is due to her, together 
with interest and damages, — or keep it as a pledge till she has re- 
ceived ample satisfaction." — Ibid., Sect. 342. 

" There are cases, however, in which reprisals would be justly con- 
demnable, even' when a declaration of war would not be so ; and these 
are precisely those cases in which nations may with justice take up 
arms. When the question which constitutes the ground of a dispute 
relates, not to an act of violence, or an injury received, but to a con- 
tested right, — after an ineffectual endeavor to obtain justice by con- 
ciliatory and pacific measures, it is a declaration of war that ought to 
follow, and not pretended reprisals, which, in such a case, would only 
be real acts of hostility, without a declaration of war, and would be 
contrary to public faith, as well as to the mutual duties of nations." — 
Ibid., Sect. 354. 

" Reprisals by commission, or letters of marque and reprisal, granted 
to one or more injured subjects, in the name and by the authority of 
a sovereign, is another mode of redress for some specific injury, which 
is considered to be compatible with a state of peace, and permitted by 
the law of nations. The case arises when one nation has committed 
some direct and palpable injury to another, as by withholding a just 
debt, or by violence to person or property, and has refused to give any 
satisfaction." — 1 Kents Comm. 61. 

The principle stated in these authorities relates to reprisals 
as a measure of redress before the existence of a war. But 



12 

when reprisals are resorted to in time of war, for the purpose 
of weakening the enemy by depriving his subjects or citizens 
of their property, the principle that there can be no lawful re- 
prisals until an injury is sustained is equally applicable. 

Wheaton enumerates, " among the vaj'ious modes of termi- 
nating the differences between nations by forcible means short 
of actual war," — 

4. " By making reprisals upon the persons and things belonging to 
the offending nation, until a satisfactory reparation is made for the 
alleged injury." 

He says : — 

" Reprisals are also general or special. They are general when a state 
which has received, or supposes it has received, an injury from another 
nation, delivers commissions to its officers and subjects to take the per- 
sons and property belonging to the other nation, wherever the same 
may be found. It is, according to present usage, the first step which 
is usually taken at the commencement of a pubUc war, and may be con- 
sidered as amounting to a declaration of hostilities, unless satisfaction 
is made by the oflfending state. Special reprisals are where letters of 
marque are granted, in time of peace, to particular individuals who have 
suffered an injury from the government or subjects of another nation." 

**• Reprisals are to be granted only in case of a clear and open denial 
of justice." — Elements of Int. Law, Part IV. Chap. I. Sect. 1, 2. 

It is one of the singular features, however, of this contro- 
versy and warfare, and one of the strange perversions of all 
ordinary action, that the proposals by Mr. Jefferson Davis to 
issue "letters of marque and reprisal '^ were made before any 
article of property belonging to the Confederate States, or any 
one of them, or to any person claiming to be a citizen of any 
one of those States, had been interfered with ; or any person 
belonging to the Confederate States had been molested by the 
government of the United States, except in self-defence.* It is 
true that the United States in the war of 1812, by the same 

* April 17, 1861. 



13 

act in which they declared the existence of the war, author- 
ized the President to issue letters of marque and reprisal ; but 
it must be recollected that they cofnplained of long-continued 
grievances by reason of the seizure of men and property, the 
confiscation of property, and the denial of reparation. The 
cases are not only unlike ; they are entirely dissimilar. The 
Confederate States can hardly claim to make reprisals because 
of the passage of a tariff long since repealed, even supposing 
it to have been onerous ; or the passage of personal-liberty 
laws by some of the States ; or the refusal of Congress to as- 
sent that slavery should be admitted into the Territories ; or 
the election of Mr. Lincoln. None of these things were done 
to, or suffered by, the Confederate States, which were not then 
in existence as a belligerent power, or in separation from the 
United States. In the war of the Revolution, the United Col- 
onies did not attempt to authorize the capture of private prop- 
erty until nearly a year after the commencement of hostilities. 
Not so the Secessionists. There is no doubt that, from the 
first, even before any vote of secession, this warfare upon pri- 
vate property was relied upon as one of the means of insuring 
the success of the insurrection. " If you do not let us secede 
without any attempt at coercion, we will refuse to pay our 
debts, and, by means of privateers, ruin your commerce." 

From what has been thus stated, we draw a further conclu- 
sion that the recent order of Mr. Judah P. Benjamin, acting 
Secretary of War for the Confederate States, subjecting Colonels 
Corcoran, Wood, and Lee, Major Revere, and others, who were 
taken prisoners by the Confederate forces at the battle of Ball's 
Bluff, to imprisonment in the dungeons of felons, in retalia- 
tion or reprisal for the imprisonment of persons taken prison- 
ers on board of the Confederate privateers, some of whom have 
been tried for piracy under the statute of the United States 
before cited, is a gross violation of the rules of honorable war- 
fare. The Confederates attempt to escape from the odium of 
treason by alleging the existence of war. They are bound, 



14 

then, to conduct the warfare on their part according to the 
usages of civilized nations. But there is no usage of nations 
by which one belligerent, having prisoners who have never 
been amenable to its laws, and have committed no crime 
against them, but who have been taken in battle fighting un- 
der their own banners, can immure those persons in damp 
dungeons, and subject them to the treatment of convicts, 
merely because its belligerent adversary, finding among his 
prisoners those who according to his laws owe allegiance, and 
have committed treason, or who in violation of long-existing 
statutes have incurred the guilt of piracy, proceeds with such 
persons in the ordinary course of justice according to those 
laws. If one belligerent merely proceeds according to law, 
that furnishes no reason why the other should resort to meas- 
ures sanctioned by no law. The law of reprisals, as it affects 
persons, — usually termed retaliation, or lex talionis, — may 
rightfully be resorted to in time of war by one nation, when a 
gross outrage in violation of the laws of war has been com- 
mitted upon its citizens or subjects by the other, in order to 
restrain and prevent further outrage. Some of the accredited 
writers upon public and natural law will, however, hardly sus- 
tain even this proposition. 

Rutherforth expressly denies the right of retaliation by kill- 
ing prisoners, when the enemy has done the same thing : — 

" The exceptions to this rule of not killing these persons, who never 
were in arms at all, or who, though they have been in arms, have sur- 
rendered themselves, are very few. If they, are considered as mem- 
bers of the nation with which we are at war, nothing more is necessary, 
in the first instance, than to get them into our power. The law of na- 
ture, therefore, will not allow us to go further. But if they whom we 
thus get into our power have been guilty of any previous crime for 
which they deserve death, this law does not forbid us to inflict this 
punishment, any more than if they and we wei'e members of no society 
at all, but were still in the original state of nature. 

" The obstinacy of holding out long in a siege, is not one of these 



15 

crimes ; for a discharge of their duty towards their own nation is not 
in its own iiature a crime against the other. There might, perhaps, be 
some advantage in putting a garrison to the sword for holding out long, 
as such an example might be a means to deter others from giving the 
besiegers the same trouble ; but neither this nor any other motive of 
mere utility will render it just to take away the lives of those who are 
in our power, and have not deserved to lose them. Neither is retalia- 
tion a justifiable cause for killing prisoners of war. Though our ad- 
versaries should have killed the prisoners whom they have taken from 
us, this will not justify us in killing the prisoners whom we have taken 
from them. The law of nature allows of retaliation only where they 
who have done harm are made to suffer as much harm as they have 
done. But to kill such prisoners of war as are in our power, because 
the nation to which they belong has treated our countrymen in this 
manner, would be to do harm to one person because harm had been 
done by another. An injury which is done by a nation does, indeed, 
communicate itself to all the' members of that nation ; and such a com- 
munication of guilt is all that can be pleaded for the retaliation of 
which we have been speaking. But Grotius very truly replies here, 
that to punish captives or prisoners of war in this manner would be to 
punish them in what is their own as individuals, whereas the national 
guilt can only be communicated to them as they are members of the 
offending nation ; and consequently the proper punishment of it should 
only be inflicted on them as they are members of the offending nation, 
and not as they are individuals." — Institutes of Natural Law, Book 
II. Chap. 9, Sect. 15. 

" Prisoners of war are, indeed, sometimes killed ; but this is no 
otherwise justifiable than as it is made necessary, either by themselves, 
if they make use of force against those who have taken them, or by 
others, who make use of force in their behalf, and render it impossible 
to keep them. And as we may collect from the reason of the thing, so 
it likewise appears, from common opinion, that nothing but the strong- 
est necessitj^ will justify such an act ; for the civilized and thinking 
part of mankind will hardly be persuaded not to condemn it till they 
see the absolute necessity of it." — Ibid. 

Martens admits a more extended rule. Under the head of 
Reprisals, he says : — 



16 

" A sovereign violates his perfect obligations in violating tHe natural 
or perfect rights of another. It matters not whether these rights are 
innate, or whether they have been acquired by express or tacit cove- 
nant, or otherwise. 

" In case of such violation, the injured sovereign may refuse to fulfil 
his perfect obligations towards the sovereign by whom he is injured, or 
towards the subjects of such sovereign. He may also have recourse 
to more violent means, till he has obliged the offending party to yield 
him satisfaction, or till he has taken such satisfaction himself, and 
guarded himself against the like injuries in future. 

" There are many acts by which a sovereign refuses to do or to suf- 
fer what he is perfectly obliged to do or to suffer, or by which he does 
what he is ordinarily obliged to omit, in order to obtain satisfaction for 
a real injury sustained. All these acts are called reprisals. Conse- 
quently, reprisals are of many sorts. The talio, by which an injury 
received is returned by an injury exactly equal to it, is one sort of re- 
prisals ; but the use of it is not indiscriminately permitted on all occa- 
sions." — Law of Nations, Book VIII. Chap. 1, Sect. 3. 

In a note he adds : — 

" If the ambassador or messenger of a state has been put to death 
by another state, the former state could not, on that account, have a 
right to put the ambassador or messenger of the latter to death ; but in 
time of war, a prisoner of war may sometimes be put to death in order 
to punish a nation that has violated the laws of war. In the first case, 
the injured nation has other means of obtaining satisfaction, and of 
guarding against such violations for the future ; but war being of itself 
the last state of violence, there often remains no other means of guard- 
ing against future violations on the part of the enemy." 

So Vattel admits the right to execute prisoners in retalia- 
tion for an execution by the hostile general without any just 
reason, and against an inhuman enemy who frequently com- 
mits enormities. 

" This leads us to speak of a kind of retaliation sometimes practised 
in war, under the name of reprisals. If the hostile general has, with- 
out any just reason, caused some prisoners to be hanged, we hang an 
equal number of his people, and of the same rank, — notifying to him 



17 

that we will continue thus to retaliate, for the purpose of obliging him 
to observe the laws of war. It is a dreadful extremity thus to con- 
demn a prisoner to atone, by a miserable death, for his general's crime ; 
and if we had previously promised to spare the, life of that prisoner, 
we cannot, without injustice, make him the subject of our reprisals. 
Nevertheless, as a prince or his general has a right to sacrifice his ene- 
mies' lives to his own safety and that of his men, it appears, that, if 
he has to do with an inhuman enemy, who frequently commits such 
enormities, he is authorized to refuse quarter to some of the prisoners 
he takes, and to treat them as his people have been treated." — Book 
III. Chap. 8, Sect. 142. 

Chancellor Kent sums up the authorities in these words : — 

" Cruelty to prisoners, and barbarous destruction of private property, 
will provoke the enemy to severe retaliation upon the innocent. Re- 
taliation is said by Rutherforth not to be a justifiable cause for putting 
innocent prisoners or hostages to death ; for no individual is chargeable, 
by the laws of nations, with the guilt of a personal crime, merely be- 
cause the community of which he is a member is guilty. He is only 
responsible as a member of the state, in his property, for reparation in 
damages for the acts of others ; and it is on this principle that, by the 
law of nations, private property may be taken and appropriated in war. 
Retaliation, to be just, ought to be confined to the guilty individuals, 
who may have committed some enormous violation of public law. On 
this subject of retaliation, Professor Martens is not so strict. While he 
admits that the life of an innocent man cannot be taken, unless in ex- 
traordinary cases, he declares that cases will sometimes occur, when the 
established usages of war are violated, and. there are no other means, 
except the influence of retaliation, of restraining the enemy from fur- 
ther excesses. Vattel speaks of retaliation as a sad extremity, and it 
is frequently threatened without being put in execution, and probably 
without the intention to do it, and in hopes that fear will operate to 
restrain the enemy. Instances of resolutions to retaliate on innocent 
prisoners of war occurred in this country during the Revolutionary 
war, as well as during the war of 1812 ; but there was no instance in 
which retaliation beyond the measure of severe confinement took place 
in respect to prisoners of war." — Commentaries, I. 93, 94. 
3 



18 

From the more recent work of Wheaton, we quote to the 
same effect. 

" A belligerent has, therefore, no right to take away the lives of those 
subjects of the enemy whom he can subdue by any other means. 
Those who are actually in arms, and continue to resist, may be lawfully 
killed; but the inhabitants of the enemy's country, who are not in 
arms, or who, being in arms, submit and surrender themselves, may not 
be slain, because their destruction is not necessary for obtaining the just 
ends of war. Those ends may be accomplished by making prisoners of 
those who are taken in arms, or compelling them to give security that 
they will not bear arms against the victor for a limited period, or dur- 
ing the continuance of the war. The killing of prisoners can only be 
justifiable in those extreme cases where resistance on their part, or on 
the part of others who come to their rescue, renders it impossible to 
keep them. Both reason and general opinion concur in showing, that 
nothing but the strongest necessity will justify such an act." — Interna- 
tional Law, Part IV. Chap. 2, Sect. 2. 

" The exceptions to these general mitigations of the extreme rights 
of war, considered as a contest of force, all grow out of the same origi- 
nal principle of natural law, which authorizes us to use against an ene- 
my such a degree of violence, and such only, as may be necessary to 
secure the objects of hostilities. The same general rule, which deter- 
mines how far it is lawful to destroy the persons of enemies, will serve 
as a guide in judging how far it is lawful to ravage or lay waste their 
country. If this be necessary, in order to accomplish the just ends of 
war, it may be lawfully done, but not otherwise. Thus, if the progress 
of an enemy cannot be stopped, nor our own frontier secured, or if the 
approaches to a town, intended to be attacked, cannot be made without 
laying waste the intermediate territory, the extreme case may justify a 
resort to measures not warranted by the ordinary purposes of war. If 
modern usage has sanctioned any other exceptions, they will be found 
in the right of reprisals or vindictive retaliation. The whole interna- 
tional code is founded upon reciprocity. The rules it prescribes are 
observed by one nation, in confidence that they will be so by others. 
Where, then, the established usages of war are violated by an enemy, 
and there are no other means of restraining his excesses, retaliation 
may justly be resorted to by the suffering nation, in order to compel the 



19 

enemy to return to the observance of the law which he has violated." 
— Ihid., Sect. 6. 

It is not astonishing, however, that those who violate all 
principle by the issue of letters of marque and reprisal wheii 
no injury has been done to them, and offer a premium of 
twenty dollars each for the destruction of persons on board 
any armed vessel of the United States sunk, burnt, or de- 
stroyed by a privateer of equal or inferior force, should 
imprison and threaten to hang other innocent persons, with- 
out any trial, merely because their adversary subjects those 
who accept and act under such commissions to plunder pri- 
vate property, and kill persons on the high seas, to an ordi- 
nary trial by jury for alleged offences committed against the 
laws of the government whose citizens are thus assailed. 

But although the insurgents stand legally, as to the United 
States, in the position of rebels and traitors, and their priva- 
teersmen as pirates, and may be so held and treated, it is not 
a necessary result that the penalty should be exacted, nor that 
the warfare which exists should be carried on, in all respects, 
upon the assumption that the only status which can be assigned 
to them is that of rebels. An insurrection may, as we have 
seen, result in what is properly denominated a war, without 
losing its character as an insurrection, and without any ex- 
emption of those who participate in it from the penalties legally 
attached to rebellion. Such is the case with all civil wars 
which originate in an attempt to overthrow the existing gov- 
ernment, or seek a separation from it. But in proportion to 
the magnitude and gravity of the warfare, it gradually loses, 
in the public mind, its distinctive character as an insurrection, 
being known as a civil war ; and then it is hardly expedient to 
insist upon the enforcement of the extreme penalties of treason 
and piracy, against those who are merely subordinate and hire- 
ling agencies in wickedness. If such penalties are enforced 
at all, it should be against the active instigators of, and princi- 
pals in, the rebellion ; but these are the very offenders most 
likely to escape. 



20 

Great Britain, although she imprisoned several of the Colo- 
nists in the course of the war for Independence, and treated 
them thus far as rebels, did not in any case proceed to the ex- 
treme measure of execution. 

When a rebellion is not immediately suppressed, but as- 
sumes the proportions and character of a war on the side of 
the insurgents, the parties to that war have necessarily, to a 
certain extent, the political character of belligerents. The 
government assailed must employ military forces, and place 
them in conflict with the military force arrayed against it ; and 
the ordinary result of such conflict is the capture of prisoners 
on both sides. In the first stage of such a conflict, it may be 
just that the government assailed should treat its prisoners 
according to their legal status as traitors, or pirates, as one of 
the means of suppressing the insurrection. But when it is 
apparent that this means fails of its purpose, and becomes an 
unnecessary severity, the question immediately arises whether 
the government is not unjust to the persons whom it holds as 
captives, and who were mere subordinates in the hostilities 
which have been waged, if it refuse to extend to them the 
usual treatment of prisoners of war. And the more signifi- 
cant question follows, to wit, whether it is not guilty of still 
more gross injustice if it leave its own soldiers, who by misfor- 
tune have fallen into the hands of the other party, to the hard- 
ships of a captivity which it could terminate at any time by an 
exchange. That government which sends its soldiers into the 
field with the understanding that, if taken prisoners, they will 
be left to their fate, without an attempt to redeem them from 
the hardships and sufferings incident to such captivity, except 
by the ultimate success of the war, may thereby give them an 
additional incentive to fight unto death in any hopeless en- 
counter in whicli they shall happen to be involved ; but when 
it places itself on such a platform, it shows that it has little 
care for the comfort or safety of those who fight its battles. 
Certainly, an administration which should long conduct a war 



21 

on that principle would not deserve to have battles fought 
for it. 

An exchange of prisoners, while it is thus far a recognition, 
by implication, of a political status of the insurgents as an 
organized force, implies nothing respecting the legal char- 
acter of that force. An exchange of prisoners may be made 
with an independent belligerent nation long established ; it 
may be made with a belligerent barbarian ; and so it may 
be made with insurgents, or even with those who are strictly 
pirates. 

It seems clear that, while, on the one hand, the insurgents, 
by any amount of force which they can muster in the field, in 
giving to the contest the character of a war, cannot deprive 
the government assailed of the right to treat them as traitors ; 
so, on the other hand, government may voluntarily recognize 
the force arrayed against it as that of a belligerent party, 
against which it may adopt the modes of warfare usual among 
nations, as, for instance, a blockade, — or with which it may 
negotiate for the mitigation of the horrors and sufierings of 
the warfare, as by an exchange of prisoners, — without there- 
by depriving itself of the right still to hold the persons en- 
gaged in the insurrection as traitors or pirates, according to 
the nature and character of their hostile acts. 

Regarding the Secessionists as mere insurgents and traitors, 
who by means of the insurrection have for the time subverted 
the legitimate authority of the United States, and deprived 
that government of the revenue from customs within the lim- 
its of the insurrection, — attempting at the same time to ap- 
propriate such revenue to their own use, — the government 
might, by a mere act or order, have closed the ports, as one of 
the means of suppressing the insurrection, instead of battering 
down the towns, which would, perhaps, be somewhat more 
.effectual. There seems to be no reasonable doubt that the 
President — who, under his power and duty to suppress the 
insurrection, might order the latter to be done, if in his judg- 



22 

ment the exigency required it — might resort to the milder 
measure of interdicting all commerce there, when it became 
apparent that such commerce was not, and could not he, car- 
ried on with the United States, and, instead of being benefi- 
cial, was hostile to them. No blockading force is necessary to 
the validity of such an act or order. Each nation has a right, 
for its own reasons, to constitute and to abolish ports of entry ; 
and one of the reasons for abolishing a port might be the ex- 
istence of an insurrection there. And so long as other nations 
recognize the jurisdiction and authority of the government 
which abolishes, over the locus in quo, they must respect the 
act or order which denies entrance there, although it may be 
a mere paper regulation, without any military or naval force 
to support it. If, however, the abolishment of the port was in 
fact an act of hostility for the purpose of inflicting an injury 
upon another nation, instead of being designed as a municipal 
or domestic regulation, it might give just cause of offence. 

But an act discontinuing a port of entry, or an order closing 
such a port and interdicting commerce there, is a very differ- 
ent matter from a blockade of the port. The term " block- 
ade " has its appropriate signification. It means to block up, 
or shut up, — not to subvert or abolish ; nor does it signify 
the closing of the port, except by the presence of a force for 
that purpose. A blockade, properly so called, while it may be 
used to suppress an insurrection, is not a mere measure for 
that purpose, without other incidents or consequences attached 
to it. A blockade proper imports the closing of the port of 
an enemy by a hostile power, thereby forbidding entrance and 
exit, under certain rules and limitations, and with certain ex- 
ceptions ; and it implies at the same time a right in other 
nations to enter and clear from the port, under the party in 
actual possession of it, if the blockade is not made effectual 
by a competent force. It is not the exercise of a mere mu- 
nicipal or domestic right, like that of closing a port by a re- 
pealing act, or an affirmative order for the purpose ; but it is a 



23 

right of war, acknowledged by the law of nations as existing 
in favor of one belligerent against the other, and regulated by 
the rules of international law. 

A few extracts from an approved elementary work will be 
sufficient to show the nature of a blockade. 

" Among the rights of belligerents, there is none more clear and in- 
controvertible, or more just and necessary in the application, than that 
which gives rise to the law of blockade. Bynkershoek says, it is 
founded on the principles of natural reason, as well as on the usage of 
nations ; and Grotius considers the carrying of supplies to a besieged 
town, or a blockaded port, as an offence exceedingly aggravated and in- 
jurious. They both agree that a neutral may be dealt with severely ; 
and Vattel says, he may be treated as an enemy. The law of blockade 
is, however, so harsh and severe in its operation, that, in order to apply 
it, the fact of the actual blockade must be established by clear and un- 
equivocal evidence ; and the neutral must have had due previous notice 
of its existence ; and the squadron allotted for the purposes of its exe- 
cution must be competent to cut off all communication with the inter- 
dicted place or port ; and the neutral must have been guilty of some 
act of violation, either by going in, or attempting to • enter, or by com- 
ing out with a cargo laden after the commencement of the blockade. 
The failure of either of the points requisite to establish the existence 
of a legal blockade, amounts to an entire defeasance of the measure, 
even though the notification of the blockade had issued from the au- 
thority of the government itself. 

" A blockade must be existing in point of fact ; and in order to con- 
stitute that existence, there must be a power present to enforce it." 

" The definition of a blockade given by the convention of the Baltic 
powers, in 1780, and again in 1801, and by the ordinance of Congress, 
in 1781, required that there should be actually a number of vessels 
stationed near enough to the port to make the entry apparently dan- 
gerous." 

"The occasional absence of the blockading squadron, produced by 
accident, as in the case of a storm, and when the station is resumed 
with due diHgence, does not suspend the blockade, provided the suspen- 
sion, and the reason of it, be known ; and the law considers an attempt 



24 

to take an advantage of such an accidental removal as an attempt to 

break the blockade, and as a mere fraud But if the blockade be 

raised by the enemy, or by applying the naval force, or a part of it, 
though only for a time, to other objects, or by the mere remissness of 
the cruisers, the commerce of neutrals to the place ought to be free. 
The presence of a sufficient force is the natural criterion by which the 
neutral is enabled to ascertain the existence of the blockade." 

" The object of a blockade is not merely to prevent the importation 
of supplies, but to prevent export as well as import, and to cut off all 
communication of commerce with the blockaded port. The act of 
egress is as culpable as the act of ingress, if it be done fraudulently. 
The modern practice does not require that the place should be in- 
vested by land as well as by sea, in order to constitute a legal blockade ; 
and if a place be blockaded by sea only, it is no violation of belligerent 
rights for the neutral to carry on commerce with it by inland commu- 
nications. 

"It is absolutely necessary that the neutral should have had due 
notice of the blockade, in order to affect him with the penal conse- 
quences of a violation of it After the blockade is once estab- 
lished, and due notice received, either actually or constructively, the 
neutral is not permitted to go to the very station of the blockading 
force, under pretence of inquiring whether the blockade had termi- 
nated, because this would lead to fraudulent attempts to evade it, and 
would amount in practice to a universal license to attempt to enter, 
and, on being prevented, to claim the liberty of going elsewhere." 

" A neutral cannot be permitted to place himself in the vicinity of a 
blockaded port, if his situation be so near that he may, with impunity, 
break the blockade whenever he pleases, and slip in without obstruc- 
tion. If that were to be permitted, it would be impossible, that any 
blockade could be maintained." 

" The fact of clearing out or sailing for a blockaded port is, in itself, 
innocent, unless it be accompanied with knowledge of the blockade." 

" In Teaton vs. Fry, the Supreme Court of the United States coin- 
cided essentially with the doctrine of the English prize courts ; for they 
held that sailing from Tobago for Cura5oa, knowing the latter to be 
blockaded, was a breach of the blockade, and, according to the opinion 



25 

of Mr. Justice Story, in the case of the Nereide, ' the act of sailing with 
intent to break a blockade is a sufficient breach to authorize confisca- 
tion.' If the ports be not very wide apart, the act of sailing for 

the blockaded port may reasonably be deemed evidence of a breach 
of it, and an overt act of fraud upon the belligerent rights." 

" The consequence of a breach of blockade is the confiscation of the 
ship ; and the cargo is always, prima facie, implicated in the guilt of 

the owner or master of the ship If a ship has contracted guilt 

by a breach of blockade, the offence is not discharged until the end 
of the voyage. The penalty never travels on with the vessel farther 
than to the end of the return voyage ; and if she is taken in any part 
6f that voyage, she is taken in delicto." — 1 Kent's Com., 143-151. 

It appears from all this, that a blockade admits, by implica- 
tion, that the port is in the possession of a party or power 
with which the blockading party is at war, and with which 
neutral nations, if they please, may hold commercial inter- 
course, subject to the laws of war, without payment of duties 
to the party instituting the blockade, or interruption by that 
party except by the blockade, or other warlike operations. In 
other words, the port is governed for the time being, as be- 
tween the- blockading party and neutral nations, by the law of 
nations applicable to war between two powers, — instead of 
being governed, as to them as well as its possessors, by the 
domestic law applicable to the insurrectionary resistance to 
the established government. That government cannot say to 
neutrals, " We debar you from entering this port because it is 
blockaded, and if you violate the blockade, you will be liable 
to capture and condemnation," — leaving them to inquire 
whether the blockade is maintained, and to govern themselves 
by the law applicable to it, — and at the same time say, " All 
intercourse with the place is forbidden, because it is our port, 
but, by reason of insurrectionary force, commerce there can- 
not be carried on with the United States, and the place, there- 
fore, is no longer to be treated as a port during the continu- 
ance of the insurrection." 
4 



26 

The right to treat the insurrectionary force as a belligerent 
power by the institution of a blockade, thus leaving neutral 
nations at liberty, if they please, to hold commercial inter- 
course with the insurgents as a belligerent power, so far as 
they may without a violation of the blockade, is entirely con- 
sistent with the position that the insurgents themselves are 
mere rebels and traitors. In fact, any foreign nation may 
oblige the government assailed to resort to a blockade in order 
to prevent commercial intercourse with the insurgents, so far 
as such nation is concerned, by an acknowledgment of their 
independence, or, according to modern usage, by a recognition 
of them as a belligerent power, with a proclamation of neutral- 
ity between the contending parties, — which certainly can in 
no way affect the ]*ight of the existing government to deal with 
the insurgents as traitors, under its own municipal law. And 
if the government pleases to institute a blockade in anticipa- 
tion of such compulsion, no implication can arise from it 
changing the legal relations of the parties. 

Another good reason exists why the government assailed 
may prefer to give to the insurgent force this character of a 
belligerent party, so far as its relations with foreign nations 
are concerned. The laws of blockade, and of capture for vio- 
lation of it, and the proceedings for adjudication thereupon, 
are, in general, well settled and defined ; while the rules 
which must regulate punishment for any violation of an order 
closing the port, and forbidding entrance into it, as a means of 
suppressing the insurrection, without a blockade, are not so 
well settled ; and attempts to deal with infractions of such or- 
der by vessels of foreign powers would lead to unnecessary 
collisions, certainly after a recognition of belligerency. 

It has been contended that a nation cannot blockade its 
own ports ; but this position is not tenable when the port is in 
possession of a hostile force. To deny the right of blockade 
in such case would be to deny its right to the port, or, practi- 
cally, to make it a free port until the government which for- 



27 

merly held and still claimed it should destroy it ; for no mere 
order or act for closing it could be of any avail against a for- 
eign nation which pleased to recognize the insurgents as Lel- 
ligerents, without a blockade superadded. 

This leads us to a more extended examination of the rela- 
tions which foreign nations do or may, according to the rules 
of international law, sustain to those who, under the plea of 
Secession, are using the names and styles of several States, 
and who, with the assumption of State and Confederate au- 
thority, are waging insurrectionary warfare against the United 
States. It is apparent, from what has been said, that these 
relations might be either one of three different descriptions. 

1. In the case of an insurrection, accompanied by an at- 
tempt to establish an independent government, a foreign na- 
tion may decline in any wise to interfere in the contest, treat- 
ing the case precisely as if it were an insurrection which in 
no way affected its interests, except as the actual force of the 
insurgents interrupts the exercise of authority by the gov- 
ernment assailed in places where that government had before 
exercised it, and still claims the right to continue its exercise. 
This is substantially the position of Russia, and, in fact, of all 
European and other foreign powers, as respects the United 
States, — Great Britain, France, and Spain excepted. 

The foreign government which places itself in this relation 
may, and in some contingencies must, recognize the existence 
of the insurrection, and vary its action, or that of its citizens 
and subjects, accordingly. As, for instance, if the United States 
government should prohibit the entrance of any vessel into a 
particular port or ports, because the people of the place were 
in a state of insurrection, so that commerce with the United 
States under existing treaties could not be carried on there, a 
government declining any recognition of the insurgents, or in- 
terference with reference to the contest, would instruct its sub- 
jects, consuls, and officers to regard the prohibition, and com- 
ply with the regulation of the existing government, as if that 



28 

government still possessed full jurisdiction and control over its 
bays, harbors, and waters, as before the existence of the insur- 
rection, — without requiring any actual blockade of the ports 
in order to enforce the prohibition. It may be quite consistent 
with such a position for the foreign government to claim that 
all vessels belonging to its subjects, which should enter the 
ports without notice of the prohibition, should be permitted to 
dispose of their cargoes and depart- with such clearance as could 
be obtained there, in the same manner as if the prohibition 
had not existed ; because, acting in good faith toward the gov- 
ernment, as if the insurrection did not exist, and leaving that 
government to contend with it without any interference or 
recognition of the authority or political existence of the in- 
surgents, the foreign nation might well claim that its subjects 
should not suffer loss, or be prejudiced, without warning. 

A foreign nation occupying such a position comes under no 
obligation, and owes no duty, to the insurgent power. It may 
carry on its commerce with the government assailed without 
any liability, under the law of nations, to search and seizure 
for contraband goods. It may avail itself of any implied rec- 
ognition of the insurgents by the government assailed, as by 
the institution of a blockade, and insist that its subjects have 
a right to hold commercial intercourse with the insurrection- 
ary power as a belligerent, so far as they may consistently with 
the blockade. It will naturally refuse to permit its vessels to 
be overhauled and detained by vessels commissioned by the 
insurgents as privateers, and may well treat such interference 
as piratical ; although it will be at its pleasure, and consist- 
ent with its position, to permit such visitation as may serve to 
ascertain the nationality of its vessels, without any search for 
enemies' property, or articles contraband of war. 

Such a position would by no means require the foreign 
nation, which ignored the insurgent force as an existing power, 
to treat the privateers commissioned by the insurrectionary 
government as pirates. It is true, that the British govern- 



29 

ment, in the case of Greece, in 1825, alleged that " a power or 
a community which was at war with another, and which cov- 
ered the sea with its cruisers, must either be acknowledged as 
a belligerent, or dealt with as a pirate." But the necessity is 
certainly not apparent, in respect to any nation whose vessels 
are not interfered with by such cruisers. With the exception 
of nations whose commerce is assailed, it is not necessarily an 
objection to a privateer that «he holds a commission from an 
unrecognized power. Piracy, it is evident, may be of a gen- 
eral, or of a limited character. The slave-trade is piracy 
under the laws of Great Britain and of the United States. 
But this does not constitute it piracy as to other nations. And 
the same may be true of that description of piracy which con- 
sists in robbing merchant-vessels on the high seas. The fact,* 
that those who act as privateers under commissions from the 
Confederate States are pirates by the express provision of the 
act of Congress before cited, as regards the United States, 
against whose vessels they direct their warfare, does not con- 
stitute them pirates as respects other nations. And the result 
would be the same, if, by the rules of public- law, also, the 
United States might hold them to be pirates. France, before 
her recognition of the independence of the United American 
Colonies, did not treat their privateers as pirates ; and the 
government of the United States has in several instances 
acted on the principle that privateers of insurgents not ac- 
knowledged were not pirates as to the United States, and \^ere 
not subject to capture as such.* But if a vessel commissioned 
as a privateer by an unrecognized belligerent rob a vessel of a 
neutral nation, may not any nation treat the act as piracy ? f 

2. Any foreign nation, Vhenever the circumstances are such 
as to warrant it, may acknowledge, for itself, the independence 

* 3 Wheaton's Reports, 610, United States vs. Palmer; 7 Wheaton's Eep. 283, 
The Santissima Trinidad ; Case of Captain P. P. Voorhies, before a naval court- 
Inartial, in 1844. 

t 1 Philliraore's Int. Law, 398 - 406. 



30 

of an insurgent organization, recognizing it as having a na- 
tional existence, and treating it as a nation ; in which case it 
may form an alliance with the insurgent government, offensive 
and defensive, and thus become a party to the war ; or it may, 
with such acknowledgment, assume a position of neutrality, 
claiming the rights of a neutral, as between what would then, 
to the party recognizing the independence of the insurgents, 
be two equally independent belligerent nations. Such ac- 
knowledgment of the independence of an insurgent party, 
before its independence is recognized by the government which 
it assails, may or may not furnish just cause of war on the 
part of that government, according to the circumstances under 
which it is made. If the acknowledgment follows very soon 
• upon the breaking out of the insurrection, and while the gov- 
ernment is pursuing active and energetic measures to suppress 
it, the aid and encouragement thereby given to the rebels 
would furnish just cause of offence to the existing government. 
On the other hand, after the contest has been of long continu- 
ance, and the independence of the insurrectionary party has 
been practically maintained for such a period as to show its 
capacity to uphold it, then the interests of other nations may 
well justify them in an acknowledgment of what has been ac- 
complished, — in a recognition of an existing fact, — without 
just cause of offence to the government which has been re- 
sisted, and which has failed to overcome that resistance. The 
commercial interests of nations having no interest in the con- 
test may require that they should make the recognition, for 
the purpose of trade, or for other desirable ends ; and the ex- 
isting government cannot complain of the mere acknowledg- 
ment of an actual fact. But such recognition should follow 
only a practical independence. Such was the case with the 
acknowledgment of the independence of the South American 
republics by the United States in 1823, the latter assuming 
to act as a neutral nation. 

The insurgent party, upon such acknowledgment, may 



31 

claim the right to send an ambassador or minister to the 
nation making it, and may expect in due course of time to 
receive one, and to have their intercourse regulated by treaty. 
After such an acknowledgment, if the nation making it does 
not become a party to the war, — either by a treaty of alliance 
with the party thus recognized, or by a declaration of war by 
the government assailed, on account of the recognition, — the 
nation making the acknowledgment is entitled to claim the 
rights of a neutral with respect to each of the belligerent par- 
ties, treating each as a nation, and forming treaties with the 
insiirgent party, as if it were a nation, equally with its adver- 
sary ; and it may send and receive ambassadors, and trade to 
and from any ports occupied and held by the party acknowl- 
edged, except so far as it is prevented by the exercise of rights 
accorded by international law to belligerents against neutrals. 

The neutral nation has the right to require that its territory 
shall not be made the theatre of war, nor made use of for the 
purposes of war, and that hostile enterprises shall not origi- 
nate in, or be carried on, from it. Its citizens and subjects 
may be the carriers of the goods of either belligerent, subject 
to the right of the other belligerent to capture such goods, 
and to search and detain the neutral vessel for that purpose, 
but not to confiscate the ship ; and they may maintain free 
commercial intercourse with each belligerent, subject to the 
rules which forbid aid to the belligerent in the prosecution of 
the war, and to the right of the belligerent to prevent such in- 
tercourse by an efficient blockade. 

The duty of the neutral is not to favor one belligerent to 
the detriment of the other, — not to transport munitions of 
war, or other goods contraband of war, to either belligerent, 
— not to carry officers, soldiers, or despatches of either, — to 
respect any blockade by one belligerent, of the ports of the 
other, if it is efficient, — and, generally, not to aid either bel- 
ligerent, in the prosecution of the war, except as the ordinary 
commercial transactions in goods not contraband incidentally 
furnish such aid. 



32 

The rights of the belligerent as respects the neutral are, to 
visit and search his merchant-vessels, on the high seas, for the 
purpose of ascertaining whether enemies' property, or goods 
contraband of war, or persons whom the neutral may not 
carry, are on board ; to capture the property of the enemy 
so found ; * and for violation of belligerent rights, by aid 
rendered to the enemy in transporting goods contraband of 
war, or persons in the service of the enemy in the prosecution 
of the war, as officers, soldiers, or other functionaries, or the 
despatches of the enemy, — and also for violation of blockade, 
— to capture and confiscate the ship and goods. 

These are the principal rights and duties of the parties, as 
set forth, in substance, by accredited writers on international 
law, subject in some instances to limitations and modifications, 
to which we shall refer, so far as they appear to be material to 
the present discussion. 

No nation has as yet acknowledged the independence of 
the Confederate States. Such acknowledgment is not usu- 
ally made, unless by a nation which is disposed to ally itself 
with the insurgents in hostility to the government assailed, 
until the independence of the insurgents has been acknowl- 
edged by that government, or until it has been practically 
achieved. 

3. It is competent for any foreign nation, from the time 
when an insurrectionary force assumes to institute a form of 
government, and to carry on a war, to recognize the insur- 
gents as a belligerent party. 

Considerations of policy, as well as of comity, may well 
postpone such a recognition until there has been ample time 
for the government assailed to assert its power for the suppres- 
sion of the insurrection. But these are matters of which each 
nation must judge for itself. Great Britain was the first to 
make such recognition of the Confederate States. France and 
Spain have since followed the example. 

* See Appendix, Note A. 



33 

In one sense, this is but the recognition of an existing fact. 
It seems, however, to carry with it something more than a mere 
acknowledgment of the fact that there is a state of civil war 
existing ; for that fact may be recognized, spoken of, deplored, 
and sympathy expressed, as has been done by Russia, without 
any political consequences attached to such recognition. 

The formal recognition of the insurgent party as a bellige- 
rent, by another nation, gives the insurgents a political status 
as to the party making the recognition, and involves conse- 
quences to the government which is attempting to suppress the 
insurrection, as has been already suggested. This recognition 
appears to be an action intermediate as regards the other two, 
and to be a convenient mode of dealing with a case of intestine 
war by a foreign nation which is desirous of being civil to the 
insurgent party, and of availing itself of all the intercourse 
which can be established with them, without committing itself 
to an acknowledgment of an independence which may never 
be achieved, and without the establishment of diplomatic rela- 
tions, which might be suddenly terminated, and in a manner 
not greatly to the credit of the neutral, making the acknowl- 
edgment of an independence which was proved to be an abor- 
tion by the suppression of the rebellion very soon afterward. 

As Great Britain was the first to acknowledge the bellige- 
rency of the Confederates, and as this acknowledgment is the 
only one which has affected the relations of the United States 
in any considerable degree, we shall pursue the residue of our 
discussion with a more particular reference to the existing re- 
lations between Great Britain and the United States. Her 
acknowledgment did not give the insurgents a right to send 
an ambassador to the Court of St. James, nor to claim a treaty 
of amity and commercial relations. It did not place them, as 
respects her, in the position of a nation. Bu.t, being acqui- 
esced in by the United States, it gave her rights as against 
them which she could not have had, as a neutral nation, but 
for the recognition ; and it also operated to give rights to the 
6 



34 

insurgent government as against her, which she would not 
otherwise have permitted it to enjoy. 

Great Britain declared that she was cognizant of the fact 
that a civil war existed in the United States. That is nothing. 
All the rest of the civilized world knew the same thing. But 
by adding the recognition, she accorded to them the warlike 
rights of a belligerent nation ; and by her superadded declara- 
tion of strict neutrality, she allowed to them, for the general 
purposes of commercial intercourse and warlike operations, 
all the rights which she allows to the United States, aside from 
previous treaty stipulations. She bound herself to respect 
their " stars and bars " equally with the flag of the United 
States. If, in her existing treaty with the United States, 
there are any stipulations on her part, the performance of 
which would conflict with the recognition which she thus 
made, and the neutrality which she thus assumed, the ques- 
tion might arise, between her and the Confederates, how far 
she had a right, under the law of nations, to perform those 
stipulations without a breach of her neutrality. She knew 
that, at the date of her present treaty with the United States, 
all the ports in the seceding States, so called, were in the pos- 
session of the general government, and that the duties there 
paid were part of the common funds of the whole United 
States. She knew that at the time of her recognition those 
ports were in the possession of the insurgents, who claimed to 
regulate the commercial intercourse there, and to appropriate 
the revenues derived therefrom to other uses than to those of 
the United States. And she knew also how the revenue of the 
United States would be injuriously affected, by the facilities 
for smuggling into the Northern States goods introduced 
through those ports, if a free commerce were carried on there. 
Yet, by her recognition of the Confederate States as an exist- 
ing power, she acknowledges those ports to be the ports of the 
party in possession, and claims the right, as a neutral nation, 
to enter those ports, and any others which may be opened by 



35 

the Confederate States, with her ships and goods, unless the 
United States government shall enforce its attempts to sup- 
press the insurrection there by an efficient blockade, precisely 
as. she would be authorized to do in the case of two long exist- 
ing independent nations contending in war, and to which she 
held the relation of neutrality. The United States are at- 
tempting to keep up such a blockade. 

It is true that the United States were not compelled to re- 
sort to the blockade by reason of her recognition. The inten- 
tion to blockade was proclaimed on the 19th of April, which 
was before the recognition. But it is also true, we think, 
that that recognition, which was in May,* was in no manner 
influenced by the implied recognition arising from the block- 
ade. Her recognition of the insurgents as a belligerent party 
has therefore, to this extent, by her voluntary act, given them 
the standing of a nation, although there is no acknowledg- 
ment of their independence. The blockade itself would not 
necessarily have done this ; and but for the recognition, it 
might have been terminated at pleasure, so far as Great Brit- 
ain was concerned, and any other measure of coercion have 
been substituted. 

It has been said, without much consideration, that British 
ships would have had a right to resort to those ports without 



* There has been an attempt to controvert the position in the article on " Habeas 
Corpus and Martial Law " in oar last number, that Mr. Chief Justice Taney ought, 
in Merryman's case, to have taken notice of the existence of the war. The position 
itself is of very little importance to the argument, — which was to show that the 
refusal of General Cadwalader to produce his prisoner was sustained by sound 
principles ; for the Chief Justice very plainly intimated that, if General Cadwala- 
der had himself undertaken to suspend the habeas corpus, (in other words, to deny 
his liability to bring in his prisoner,) he would not have taken the trouble to argue 
the question. But it appears that the Lord Chancellor and other legal authorities 
in England had found out that war existed here some time before Merryman's case 
came before the Chief Justice, which was on the 28th day of May. And as the 
information respecting the facts which served to show its existence was not con- 
fined exclusively to that country, perhaps, if Mr. Chief Justice Taney had inquired, 
he might have found it out also. 



36 

any such recognition, if there was not an actual blockade, be- 
cause, the right of secession being denied by the United States, 
they are still ports of entry under the laws of the United 
States, the President having no power to repeal the laws con- 
stituting them ports of entry. It is readily conceded that the 
President has no power to repeal a law ; but we have already 
suggested that he might, by reason of the insurrection, which 
prevented the collection of the duties, and for the purpose of 
suppressing that insurrection, close the ports by a proclama- 
tion, which all foreign nations that did not recognize the bel- 
ligerent stoMs of the Confederate States would be bound to 
respect. If there was in fact a doubt respecting his constitu- 
tional power, the intercourse of foreign nations with the United 
States is through the Executive, and they are not authorized 
to go behind his acts, and to allege that they are nugatory, be- 
cause under the provisions of the Constitution a power which 
he attempts to exercise is vested only in Congress.* There is 
no need, however, of saying this in a curt or spicy manner. 

Moreover, without regard to any question of right legally to 
close the ports, foreign nations could not claim to enter those 
ports, as ports of the United States, after they had been noti- 
fied by tlie Executive that they could not make their entries 
there under the authority of the United States, — that duties 
paid there would be paid to insurgents, — and that clearances 
there must be taken from parties at war with the United States ; 
for which reason, and for the suppression of the insurrection, 
•entries were forbidden. 

But the burden of the recognition seems not to be alto- 
gether upon the United States. Great Britain appears there- 

* Mr. Jefferson Davis understands this. In his first message to the Confederate 
Congress, he said that the proclamation of President Lincoln was a plain declaration 
of war, which he was not at liberty to disregard, because of his knowledge that, 
under the Constitution, the President was usurping a power granted exclusively to 
Congress. " He is the sole organ of communication between that country and 
foreign powers." 



37 

by to have subjected her merchant-vessels not only to a right 
of visit to ascertain their nationality, but to a right of search 
and capture, in the same manner, and to the same extent, as 
she would have done had she acknowledged their indepen- 
dence. If the United States must accord to her the rights of 
a neutral nation, by an efficient blockade, in order to exclude 
her vessels from the Southern ports, they must certainly have 
the rights of a belligerent against a neutral, and may capture, 
in her merchant-ships, goods the property of the enemy, all 
articles known as contraband of war, and all persons whose 
carriage by the neutral is not in strict accordance with the 
neutrality. 

The privateers commissioned by Mr. Jeiferson Davis may, 
in like manner, search British merchant-vessels with similar 
rights, and for any abuse of the power her reclamation for 
damages is upon " King Cotton," if he is not in the mean 
time consumed by his own or some other fires. 

Whether the Confederate privateers will also be authorized 
to capture such loyal citizens of the States which have seceded 
as may be found on board of British vessels, — but having no 
military or hostile character except as they are citizens of the 
United States, — and turn them over to the Confederate gov- 
ernment as prisoners at twenty-five dollars per head, according 
to the tenor of the law under which they are commissioned, is 
perhaps not so clear. Upon the principle, or want of principle, 
of what the London Times now calls the " antiquated law," by 
which Great Britain claimed a right to search, and take her 
subjects from, the vessels of the United States, she would be 
bound to admit the right of the United States to take their citi- 
zens from her vessels ; and giving equal rights to the Confed- 
erate States, the question would arise whether all citizens of 
the seceded States are included within the rule. This as- 
sumption of burdens, however, is her affair, not ours. We 
merely advert to it as one of the incidents which attends the 
recognition. 



38 

It seems very apparent, from what we have stated, that the 
recognition of the Confederate States as a belligerent power 
has substantially the effect of an acknowledgment of their 
independence, except that it does not authorize a demand of 
diplomatic intercourse and the formation of treaties. How far 
was such an early recognition justified by history ? 

The long civil war of her South American Colonies against 
Spain, and their establishment of independent governments de 
facto, required a recognition of them by the United States. 
Lord John Russell referred to the recognition of Greece, in 
her war against Turkey, as furnishing a precedent. We are 
not advised that he referred to any other. But the precedent 
fails entirely, except as to the fact of that kind of recognition. 
Greece had no share nor voice in the government of herself, 
still less in governing Turkey at the same time. She had not 
furnished three quarters of the Sultans who within less than 
a century had occupied the throne at Constantinople, and she 
had not, by one enginery or another, shaped the legislation of 
the great divan of the Turkish empire so as to suit her pur- 
poses, in three quarters of the political measures adopted there 
during the same time. No state had been annexed to the em- 
pire for her aggrandizement, and to give her political strength ; 
and no war had been waged for the acquisition of Mexican 
or other territory in order that she might diffuse through it 
her peculiar institutions. On the contrary, she had been 
subjugated, though not entirely conquered ; subdued, with 
the exception of the almost wild inhabitants of her mountain 
fastnesses ; and ground into the dust by the iron heel of a 
military oppression which spared neither age nor sex, — which 
wrested from labor the reward of its toil, and snatched from 
hunger the morsel necessary to save it from becoming star- 
vation. 

This people rose up in their might against their oppressors, in 
1821, reasserting their national existence ; and after a warfare 
of more than four years, — a warfare of immeasurable atrocity 



39 

on the part of the Turks, and almost corresponding ferocity on 
the part of the Greeks, — a warfare which placed Missolonghi 
and Navarino on the page of history by the side of Marathon, 
and immortalized, among many others, the names of Mavro- 
cordato, Colettis, Kanaris, Botzaris, and Miaulis, — the British 
government issued " a decided declaration of neutrality " be- 
tween the belligerents. 

The conclusion seems to follow, that the acknowledgment of 
a belligerent status of the Confederation, before the adminis- 
tration of President Lincoln had had time to determine upon 
its measures and organize its forces for the suppression of the 
insurrection, — with the attempt to carry on a neutral com- 
merce with the ports within its limits, which ports are de jure 
still within the United States and under the jurisdiction of that 
government, and were only de facto without their jurisdiction, 
by the force of an insurrection of from four to six months' 
duration, — is entirely without a precedent, and might well be 
deemed a grave ground of offence to the United States, had 
not the blockade been previously instituted. It has undoubt- 
edly been the cause of deep feeling among the people. We 
are aware that Dr. Phillimore says : " There is no proposition 
of law upon which there exists a more universal agreement of 
all jurists than upon this ; viz. that this virtual and de facto 
recognition of a new state gives no just cause of offence to the 
old state, inasmuch as it decides nothing concerning the as- 
serted rights of the latter. For if they be eventually sustained 
and made triumphant, they cannot be questioned by the third 
power, which, pending the conflict, has virtually recognized 
the revolted state." * But he is speaking of such recognitions 
as were made by Great Britain of the South American Colo- 
nies, after a struggle between them and Spain of" about twelve 
years ; and he refers to President Monroe's message of De- 
cember, 1823, and to the speeches of Mr. Canning and Sir 

* 2 Phill. on International Law, 18. 



40 

James Mackintosh upon that subject, as his authorities for the 
proposition. 

A recognition following soon after the breaking out of an 
insurrection, and where from the peculiar circumstances there 
are special difficulties in organizing the forces of the govern- 
ment for the suppression of it, has the effect of giving an en- 
couragement to it, which a nation in amity with the existing 
government, and desirous of continuing that relation, is not 
authorized to give. 

The British government were as little prepared for the 
breaking out of the insurrection in India as the United States 
were for that of the South ; but the arm of the government 
was not paralyzed, for the time, by a complicity of Cabinet offi- 
cers with the, insurrection, and by such a state of inaction, if 
not complicity, on the part of the head of the administration, 
that nothing effective could be accomplished to arrest it until 
the traitors of the Cabinet had been forced to send in their un- 
willing resignations. Besides, the available military force of the 
British near the scene of warlike operations was much more 
readily concentrated, and comparatively of much greater effi- 
ciency, than that of the United States ; and (excepting native 
troops) it had few or no traitors in it. Still, with all these 
advantages, the British power in India was for a considerable 
period shaken to its foundation, and it was said in high quar- 
ters that " India was to be reconquered." Now suppose that, 
at about the time when Havelock began to move effectively for 
the suppression of the rebellion, some member of Congress had 
arisen in his place, and proposed a formal acknowledgment of 
the independence of British India. That would have been but 
the act of an individual legislator, who, not being the author- 
ized exponent of the views of the administration, could in no 
wise compromise the government itself. But suppose the au- 
thorized Cabinet officials had thereupon, if not in hot haste, 
yet under no circumstances of necessity, proceeded to declare 
that the United States had concluded to recognize the king of 



41 

Delhi and his adherents as belligerents. The English govern- 
ment would undoubtedly have regarded this as an evidence of 
hostility, not entirely rebutted by any proclamation of strict 
neutrality which might have accompanied it. Yet such a pro- 
ceeding would not have given courage and confidence to his 
Majesty of Delhi and his confederates to persevere in their 
rebellion. 

Such are some of the relations of the United States, domes- 
tic and foreign, arising from the insurrection in the Southern 
States, as they exist at the present time. What are the rea- 
sonable speculations for the future on this subject ? 

The Confederate War Secretary, upon the occasion of the 
bombardment of Fort Sumter, prophesied that the Confeder- 
ate flag would float over the dome of the old Capitol before the 
first of May ; and he added : " Let them try Southern chiv- 
alry, and test the extent of Southern resources, and it might 
float eventually over Faneuil Hall itself." Well, Southern 
chivalry has been tried. It began by stealing all the public 
property it could lay its hands on, and then issuing letters of 
marque and reprisal before a particle of property had been 
taken by the United States, or any injury had been done to 
the Confederacy which could by any possible construction 
warrant reprisals. It has proceeded by the confiscation of the 
property of those who, having faith in the securities of South- 
ern States and Southern people, had invested in such State 
securities, or given credit to traders for merchandise ; and 
this without regard to any act done by such holders of stocks 
or creditors, but merely because certain people of the South- 
ern States chose to rebel against the government of the United 
States, that government resisted the attempt, and the stock- 
holders and creditors were, ever had been, and still remained 
citizens of the United States. Chivalry finds its only justifi- 
cation for this seizure of private property in the fact, that the 
government under which all the parties have heretofore lived, 
and to which all acknowledged a common allegiance, resists 
6 



42 

the efforts of the debtors to accomplish a revolution. Chivalry 
has been tested in arms, as well as in legislation, and it mani- 
fests itself in masked batteries and ambuscades, the hoisting 
of false flags and signals, and all manner of false pretences 
for the purpose of securing an unequal advantage. Chivalry 
thus far is cooped up within the limits of the States seceding, 
except that, in violation of all its State-rights theory, it is 
insisting that Missouri and Kentucky, against the expressed 
will of the people of those States, shall join in the rebellion ; 
and it has thereupon attempted to overrun the former, and 
has made a lodgement in the southern portion of the latter. 
As an offset to this, it has lost Western Virginia, considerable 
portions of the eastern part of that State, and several positions 
on the seaboard in other States. It stands now, and, so far 
as at present can be judged, it is likely to stand, very much 
on the defensive, unless Southern " resources " come to the 
rescue. 

Thus far Southern resources have not shown to much bet- 
ter advantage than Southern chivalry. Proposals for a loan 
of fifteen millions of dollars are said to have realized ten 
millions. A project for a loan of cotton to the amount of 
one hundred millions is admitted to be a failure, because the 
" king " is shut up on a barren throne within his dominions, 
and cannot there be made negotiable. A tax of fifteen mil- 
lions remains to be collected in such manner as it may be. 
In the mean time an issue of one hundred millions of Con- 
federate bonds has no convertibility into coin, and no basis 
of redemption, and can therefore have no credit outside the 
limits of the Confederacy, and none within it except such as 
is enforced by the necessities of the war. Banks have sus- 
pended specie payments, and coin of all descriptions is at an 
extravagant premium. External trade is nearly all cut off by 
means of the blockade, a few arrivals and clearances, through 
a surreptitious evasion of it, furnishing only an exceedingly 
limited supply of munitions of war and foreign goods. Of 



43 

manufacturing and domestic trade there can, under these 
circumstances, be but a very small amount, except in connec- 
tion with supplies for the army ; and many descriptions of 
what are ordinarily regarded as the necessaries of life are, in 
particular districts, at almost famine prices. On the other 
hand, the agricultural crops for the present year are supposed 
to have been abundant, so that there is no prospect of the ter- 
mination of the war by absolute starvation. 

In discussing the question of the probable duration of the 
war, it has been suggested that the people of the South are 
fighting, or, what is the same thing, believe they are fighting, 
for their liberties ; and that, in all controversies of such a 
character, there is a pertinacity of purpose, which continues 
the contest without resources, and under all deprivations and 
reverses, until a final victory is achieved. One of the re- 
sources of the leaders of the rebellion has been the repre- 
sentation to the great mass of their misguided followers, that 
this is a war of subjugation, and that, if they fail to fight to 
the last extremity, their liberties will be lost. But the sober 
second-thought, if that thought ever comes, will show them 
that the termination of the war will leave the several States 
which have attempted to secede in the possession of all their 
rights of sovereignty, and in all the control of their municipal 
affairs which they have ever had since the adoption of the 
Constitution, — except so far as the rebellion has introduced 
revolution into any particular State, through which some of 
them may possibly find themselves dismembered by the action 
of their own people, — and except as the situation and legal 
condition of their slaves may, to a very material extent, be 
changed, if the war is protracted. 

That the war must continue on the part of the North until 
the navigation of the Mississippi, from its sources to its mouth, 
is secured to the people of the Northwest, so that no hostile 
power upon its banks can impede such navigation, or until 
the Northern States are rendered powerless to prosecute the 



44 

contest to a successful issue, may be assumed to be certain. 
The promptitude with which batteries were erected on the 
banks of that river immediately after the outburst of the se- 
cession, for the purpose of controlling and closing the naviga- 
tion of it, and thereby coercing the people of the Northwestern 
States into submission to the rebel power, shows conclusively 
that there can be no security for the free navigation of it ex- 
cept by holding it, and its banks on either side, within the 
jurisdiction of the United States. The great facilities for 
smuggling, through the entry of goods into the Southern ports 
and their subsequent introduction into the North along such 
an extensive line of inland frontier as would exist on a sepa- 
ration of the States, — and the fact that rival interests would 
create sources of constant irritation, — furnish other reasons 
why the eventual establishment of the authority of the United 
States must be sought by the Northern States, even through a 
protracted contest, and at an enormous sacrifice. With vic- 
tory secured, the North would rise up with renewed energy, 
and with its own material interests comparatively unimpaired, 
except by a decrease in the demand for articles heretofore 
furnished to the South. 

Not so with the South. With a protracted contest, even 
victory is a substantial defeat. Cotton, which has been sup- 
posed to be the great resource to carry them through the rev- 
olution, has, as we have seen, thus far proved a failure. It 
cannot be applied as a means to carry on the war to any great 
extent, except by a conversion into money or other articles ; 
and as this could not be effected, the crop of the present year 
remains on hand. Only a certain amount of cotton, more or 
less, is required for the consumption of the world, and this 
crop, if it could have found a market, would have supplied 
the demand in England, France, and the Northern States. 
With the diminished demand for manufactured articles, the 
supply from other quarters has thus far sufficed, so that no 
great distress has supervened from the want of Southern cot- 



45 

ton ; not more, probably, than ordinarily occurs in the course 
of a commercial revulsion, perhaps not so much. Another 
full crop, if raised before this is disposed of, will operate as a 
reduction of its ordinary value, by furnishing an excess of 
supply for the existing machinery. In the mean time, every 
year's delay in getting it to market stimulates the cultivation 
of cotton abroad. If the present state of things continues two 
or three years, the competition of foreign cotton will reduce 
the price to perhaps two thirds, or even one half, of the rate 
heretofore paid ; and with this reduction comes a correspond- 
ing reduction in the value of slaves and the value of planta- 
tions. It is for the interest of Great Britain to foster and 
protect the growth of cotton in her own dominions, and the 
production of a sufficient amount within her territory once 
secured, American cotton will not be allowed to ruin that 
source of national wealth. 

Another resource of the South, which has thus far been the 
means of strength in the prosecution of the war, is slavery. 
The slaves are the producers, and the masters can all the bet- 
ter be spared to fill the ranks of the army. It will continue 
to be so until the troops of the United States penetrate the 
slave territory. Until that time, proclamations for emancipa- 
tion, from whatever source, will be of no avail. The Presi- 
dent and Congress have no more authority to emancipate the 
slaves, than the writer of this article. An attempt so to do 
would be a gross usurpation of power. The general at the 
head of the army has no right to emancipate them, except 
as an incident to military occupations and operations ; and 
whatever theory may exist on that subject, he can accomplish 
nothing further than he penetrates the country. So far as he 
does this, the question of his right to issue a proclamation for 
that purpose is not very material. The emancipation will 
take care for itself. He cannot fight the rebels successfully, 
and at the same time aid them to hold their slaves ; and the 
result is practical freedom. If they avail themselves of it, be- 



46 

cause their masters have escaped from them, then there is no 
fugitive slave law to return them after the rebellion is sup- 
pressed. But if they remain until their masters have resumed 
their occupation under State authority on the return of peace, 
this practical freedom is not likely to prevent their return to 
bondage. When, however, the Northern army has made a 
successful march through Virginia into South Carolina, there 
is another result, which, while it cannot be contemplated but 
with horror, must, if it occur, be charged to those whose mad- 
ness will have brought it upon them. 

The great resource upon which the South has relied to 
carry it successfully through a revolution, has been the inter- 
ference of Great Britain and France. It was assumed that cot- 
ton was a king at whose feet the people of Europe must pros- 
trate themselves and their principles, and that, if Southern 
chivalry could not fight its own battles, they would, through 
this instrumentality, be fought for it by other powers. It re- 
mains to be seen whether this resource will be made available 
to the accomplishment of the object. What is the probability 
of such interference ? 

Without assuming the office of a prophet, we venture to ex- 
press a confident belief that there will be no immediate change 
in the relations which at present exist between the United 
States and foreign powers, unless some new, and at present 
improbable, complication of those relations shall give rise to 
new and grave causes of hostility. 

The sympathy of Russia with the United States has been 
manifested in a most friendly and generous manner. 

Spain, not only in her proclamation of neutrality, but in the 
enforcement of it by the release of the prizes sent into Cien- 
fuegos by the privateer Sumter, has given conclusive evidence 
that she has no sympathy with the rebellion. 

With respect to France, there has been no suppositJbn that 
there was danger of collision. The course thus far pursued by 
Napoleon III., and by the people of the French empire, while 



47 

it has evinced a deep solicitude respecting the effect which the 
civil war might have upon the material interests of Prance, 
has at the same time furnished satisfactory evidence that the 
French government and the French people — with some excep- 
tions certainly among their press and people — are disposed to 
accord to the United States all their rights, upon the most fair 
interpretation of the law of nations. 

What is the probability that Great Britain will belie all her 
professions in favor of free principles, and tarnish her fair fame 
by an alliance with a rebellion, which, caused almost entirely 
by the opposition of the North to the extension of slavery, has 
organized a Confederacy with slavery for its chief corner-stone, 
and which, if successful in establishing its independence, will 
soon insist upon opening the slave-trade ? 

There are certainly no grave causes of controversy or hostil- 
ity between the United States and Great Britain. More than 
two generations of mankind have passed away since the period 
of the American Revolution, and very few remain within the 
confines of this world whose fading memories retain even a 
faint remembrance of that contest. The controversies which 
led to the war of 1812 have either been amicably settled, or 
have fallen out of sight, and there can be no rankling bitter- 
ness which arose out of them still remaining to find expres- 
sion in the promotion of another war. Most of those who, on 
either side, were actively engaged in that contest, have laid 
their hostility to rest in the bosom of their common mother, 
— earth. That all causes of difference arising from two wars, 
and from divers controversies respecting boundaries, and other 
matters of dispute, had left no evil feeling on the part of 
the people of the United States, or at least the Northern and 
Western portion of them, was made most clearly apparent 
upon the occasion of the visit of the Prince of Wales to this 
country in 1860. There could not possibly be a more exuber- 
ant manifestation of perfect friendship than was exhibited, not 
only by all persons in official station, but by the great masses 



48 

of the people, of all classes and conditions, from the time when 
the heir apparent set his foot upon the soil of Michigan, until 
the moment when it left its last imprint upon that of Maine 
on his departure homeward. If there was any one who was 
weak enough to suppose that the grand pageant, which con- 
tinued almost without interruption from day to day during his 
progress through the copntry, — in which President and Cabi- 
net, governors and judges, senators and representatives, vied 
with one another in proffers of respect and courtesy, and in 
which the great body of the people made the welkin ring with 
their shouts of welcome, — was a mere demonstration of joy at 
the sight of a live prince, or a weak cringing to royalty, he 
must have greatly misunderstood the signs of the times. The 
enthusiasm, which seemed almost unbounded, while it was un- 
doubtedly a spontaneous testimonial of respect to the Queen, 
showing the popular estimation of her Majesty as a sovereign, 
a woman, a wife, and a mother, was at the same time a dem- 
onstration of gushing good feeling for the government of the 
country and its people at large. Old causes of feud were for- 
gotten, — rival industrial interests were for the time but as 
matters for a generous competition, — taunting words, which 
in bygone days had been profusely dispensed, gave place to 
courteous speech, which not only came trippingly from the 
tongue, but which welled up from the heart. 

There was certainly no little cause for astonishment, and 
there might well be no little revulsion of feeling, on the part 
of the people of the Northern States, when, within some six 
months afterward, and before the incoming administration 
had time to make preparations for suppressing the insurrec- 
tion, there was an effort in Parliament to give strength to it, 
by an acknowledgment of the independence of the Confed- 
eracy, and the establishment of commercial relations with it, 
which found large countenance from the English press. 

It may be admitted — it is undoubtedly true — that much 
of this offensive demonstration had its origin, not in feelings 



49 

of hostility, but in a belief that the rebellion must succeed, 
and in anticipated commercial relations with the new-born 
power thus proposed to be baptized into the great national 
and commercial church universal ; which was — even upon 
the supposition of its existence — - the offspring of treason and 
fraud, lying in a cradle constructed by theft and robbery, and 
rocked and nursed by African slavery. But it appeared some- 
what remarkable that the wise politicians who were thus will- 
ing to overlook the stigma upon the parentage of the bantling 
for which they were ready to stand as political godfathers, 
should at the same time have ignored the fact that the com- 
mercial intercourse of the Northern States was of some value 
to Great Britain, and that this was likely to be seriously inter- 
rupted at no distant day, if their project was accomplished. 
It may be, however, that they supposed, with the London 
Economist, that the dismemberment of the Union would par- 
alyze both sections. The Economist, while disclaiming any 
feeling of hostility, very frankly admitted its joy at the pros- 
pect of the dismemberment, not merely on account of the 
commercial advantages to accrue to England, but because it 
would destroy the power of the people of the United States, 
and put an end to their vain boasting. As for the "boasting," 
it is quite true that in speeches in Congress, in inflammatory 
editorials, in fourth of July orations, lyceum lectures, and 
sometimes in things called sermons, we exhibit enough, and 
more than enough, of that miserable spirit ; no small portion 
of it being (if regarded at all) offensive to England and Eng- 
lishmen, although it is specially designed for home consump- 
tion. But there are at least two things to be considered in 
extenuation. We know what people, of all the world, have 
heretofore set us the example in this respect ; and we know 
also from what people in bygone and later days have come 
the taunts and the disparagement which have given rise to 
no small portion of it. But when we gave the Prince of 
Wales his great ovation, we were not thinking of the old 
7 



50 

inquiry, " Who reads an American book ? " nor of the char- 
acteristics which have more recently, over the water, been 
assigned to " our American cousins " and their democratic 
government. Whatever may have been said by politicians in 
Congress or out of Congress, or by newspaper correspondents 
or editors, or in great and small orations, furnishes no good 
reason why Great Britain should interfere on the Confederate 
side, in this civil war. A full share of this offensive boasting 
has had its location south of Mason and Dixon's line. 

It was for a long time expected by the Southern leaders 
that Great Britain would raise the blockade to procure a sup- 
ply of cotton, and great efforts were made to represent that it 
was not efficient. We had been at some pains to procure sta- 
tistics on which to base a trustworthy estimate of the supply of 
cotton which will be received in Great Britain in 1862 from 
other sources than the Southern States, for the purpose of 
showing that her necessities in this respect would furnish no 
excuse for any such interference. No evil, such as ordina- 
rily attends a commercial crisis, could furnish a sufficient 
reason. But we are relieved from a discussion of this subject 
by the London Economist, which — referring to the notion of 
the Southern political leaders, " that by starving France and 
England, by the loss and suffering anticipated as the conse- 
quences of an entire privation of the American cotton sup- 
ply, they will compel those governments to interfere on their 
behalf, and force the United States to abandon the blockade " 
— says : — 

" If they really expect such a high-handed violation of all inter- 
national usage on our part, we can only say their leaders are less sen- 
sible and experienced men than we have hitherto supposed. There is 
not the remotest chance that either power would feel justified for a 
moment in projecting such an act of decided and unwarrantable hostil- 
ity against the United States. We are less dependent upon the South 
than the South is upon us, as they will erelong begin to discover. It 
is more necessary for them to sell, than for us to buy. As we have 



61 

more than once shown, the worst that can happen to us from a contin- 
uance of the blockade will be, that our mills will have to work two- 
thirds time ; and it is by no means sure from present appearances 
whether the aggregate demand of the world would suffice to take off 
much more than three fourths of a full production, even if we had 
cotton in abundance." 

The allegation that the blockade has not been so far effec- 
tive as to comply with the rules of international law on that 
subject, if it may have been true at some places, has not been 
so to the extent which has been represented. The blockading 
force has in most instances been sufficient to make any open 
attempt to enter or leave the port dangerous. The number of 
arrivals and departures, which has been paraded as evidence 
of its inefficiency, furnishes no proof against it. Nearly all of 
them have been fraudulent evasions of the blockade. 

It is not incumbent on the party instituting a blockade to 
station a force at all the inlets and petty harbors on the coast, 
where there is no recognized port ; where no entry could be 
made, or clearance had, in time of peace ; and where, of 
course, if any commerce were carried on, it would be smug- 
gling, and not a lawful commerce. Any running into and out 
of such places, in order to avoid the danger of the blockading 
force, is fraudulent, and has no tendency to show that the 
blockade is not effective. 

Nor is it necessary that the blockading force should be such 
that a vessel, taking advantage of a skilful pilot and the dark- 
ness of midnight, cannot make her entry, or exit, without 
being discovered. To require such a blockade would be to 
require an impracticability. Vessels navigated by steam, to 
say nothing of sailing-vessels, by selecting their time, can in 
many instances run a blockade. 

Whether the contrivances to evade the blockade are by the 
petty codfish hucksters of the Anglo-American colonies, who 
fraudulently clear for some of the West India Islands, and 
then slyly slip into Hatteras or some other inlet ; or whether 



52 

by the more pretentious " greedy merchants " of Hartlepool or 
some other " pool " on the English coast, " who care not how 
things go, provided they can but satisfy their thirst of gain,"* 
and who, violating at the same time the laws of their own 
government and those of the United States, the vaunted prin- 
ciples of British freedom and the proprieties of national inter- 
communication, sneak, in the darkness of night, into the har- 
bor of Savannah or of Charleston, for the sake of acquiring 
the " almighty dollar " with the love of which they delight 
to taunt the Yankees ; — it does not rest with Great Brit- 
ain to allege that the success of such attempts, however 
numerous, by those whom she must admit to be, thus far, 
her unworthy subjects, can show an insufficiency of the 
blockade. 

Almost at the time when we were writing the last sentence, 
the foreign relations of the United States were further com- 
plicated by the seizure of Messrs. Mason and Slidell, on. board 
the British steamer Trent, on her passage from Havana to St. 
Thomas, she being at the time on the high seas, and being (it 
is understood) a passenger vessel, owned by private parties, 
but carrying the British and foreign mails by contract with the 
government. 

Messrs. Mason and Slidell had recently left the port of 
Charleston, in a vessel belonging to parties there, for the pur- 
pose of proceeding to Europe, by way of Havana, as " Ambas- 
sadors of the Confederate States," as they have generally been 
called; but a more correct designation would be, as the agents 
or commissioners of the Confederate government, for the pur- 
pose, it may be presumed from other facts too numerous here 
to be stated, of obtaining, if possible, an acknowledgment of 
the independence of the Confederate States, — of communicat- 
ing with their agents already there, — and of aiding in the 
adoption of such measures as might promote the interests of 
those States in the existing war with the United States, by ne- 

* Puffendorff, cited by Sir William Scott, 1 Rob. Adm. Rep. 352. 



63 

gotiations for the purchase of arms and munitions of war, and 
their transportation to the ports of the Southern States. 

Mr. Jefferson Davis, in his late message to the Confederate 
Congress, speaks of them as " the distinguished gentlemen 
whom, with your approval, at the last session, I commissioned 
to represent the Confederacy at certain foreign courts " ; and 
he charges the United States with having " violated the rights 
of embassy, for the most part held sacred even among barba- 
rians, by seizing our ministers whilst under the protection and 
within the dominions of a neutral nation." It may be noted 
that this shows conclusively that their original destination was 
Europe, — that their proceeding to Havana in the first in- 
stance was merely for security, or convenience, and transship- 
ment, — and thus that their voyage on board the Trent was 
merely a continuation of a voyage from Charleston to Europe. 
They were bearers of despatches, also, of the character of 
which we shall speak hereafter. 

From this designation of them as "Ministers" and "Ambas- 
sadors," in the message, and elsewhere, it was but a matter of 
course that much of the discussion, in the papers of the day, 
has been upon the question of the right of a belligerent to stop 
the ambassador of his enemy. The right is asserted by Vattel. 
It is reasserted by Sir William Scott, in this language : — 

"I have before said, that persons discharging the functions of am- 
bassadors are, in a peculiar manner, objects of the protection and favor 
of the law of nations. The limits that are assigned to the operations 
of war against them, by Vattel, and other writers upon those subjects, 
are, that you may exercise your right of war against them, wherever 
the character of hostility exists. Tou may stop the ambassador of 
your enemy on his passage ; but when he has arrived, and has taken 
upon himself the functions of his office, and has been admitted in his 
representative character, he becomes a sort of middle-man, entitled 
to peculiar privileges, as set apart for the protection of the relations 
of amity and peace, in maintaining which all nations are in some 
degree interested." — Case of the Caroline, 6 Robinson's Adm. Rep. 
467, 468. 



54 

The doctrine thus stated may, as between England and the 
United States, be regarded as a sound principle of interna- 
tional law. 

" You may stop the ambassador of your enemy on his pas- 
sage " ? When, and where, and on what passage, may you stop 
him ? It has been argued, in reference to this case, in sub- 
stance, that he may be stopped only while in his own country, 
or while passing through the country with which his govern- 
ment is at war, or on the high seas in a vessel of his own coun- 
try ; and that in this case the stoppage was unlawful, because 
the ambassador when in a neutral vessel is in a neutral terri- 
tory. Mr. Jefferson Davis falls into this error. He speaks, as 
appears in the extract above quoted, of seizing " our ministers 
while under the protection and within the dominions of a 
neutral nation " ; and he adds, that " a claim to seize them in 
the streets of London would have been as well founded as that 
to apprehend them where they were taken," which shows that 
he has no very correct notions upon the subject. It is readily 
perceived that no possible question could arise respecting the 
right to stop tli,e ambassador of your enemy, as you may stop 
any other enemy, when you find him in the enemy's territory; 
or if he attempt to pass through your own, on his way to his 
destination. There is as little doubt that you may not inter- 
fere with him while in neutral territory, without just cause 
of offence to the neutral power whose territory protects him ; 
and no question whatever that a neutral vessel on the high 
seas is, as respects belligerent rights, in no just sense neutral 
territory. The right in time of war to search a neutral vessel 
which may reasonably be supposed to have contraband goods 
on board, and to capture and confiscate the vessel, as well as 
the goods, shows conclusively a marked distinction between 
the vessel and the territory of the neutral, the latter not being 
the subject of search, and of course not of seizure and of con- 
fiscation, on the ground that munitions of war are found there, 
— even with evidence that they were intended to be conveyed 



55 

to the enemy. The question of contraband, or not, does not 
arise until the goods are on their transit, and out of the lo- 
cal neutral jurisdiction. If then, as a matter of international 
law, you may stop the ambassador of the enemy, you may stop 
him on his outward passage while on board a neutral vessel. 

But the further question immediately presents itself. May 
you stop him in all cases where you find him thus in the 
neutral vessel, and if not, upon what voyage must he be found 
in order to the exercise of this right ? Vattel and the text- 
writers, in laying down the proposition, could not have con- 
templated merely the case of a stoppage on a voyage from one 
port of the enemy to another port belonging to him, because 
the passage of an ambassador is not ordinarily of that char- 
acter. Sir William Scott evidently did not so apply it, be- 
cause he was not speaking with even the most remote refer- 
ence to any such case. He added, as we have seen, " But 
when he has arrived, and has taken upon himself the func- 
tions of his office " ; showing that the " passage " he had in 
contemplation was a passage to the place where he was to 
exercise those functions. This shows also that the principle 
is not applicable merely to an ambassador returning in a neu- 
tral vessel to his own country after his functions have ceased ; 
nor to the case of an ambassador who, after his reception at 
the neutral court, is proceeding to another neutral port, for 
a temporary purpose, on private business, — for that is the 
very case of all others, if there be one, in which you cannot 
stop him, because his character of ambassador may be held to 
continue, and protect him, as if he were still in the neutral 
country to which he is accredited. 

The conclusion would seem to be, that he may be stopped 
in a neutral vessel, on the high seas, on his way to the coun- 
try to which he is sent, before his arrival and reception, and 
before, therefore, he is entitled to the protection of the neutral 
nation to which he is accredited. And if he may be stopped 
when proceeding directly from his own port in a neutral ves- 



56 

sel, it is not material, so far as the right to stop is concerned, 
that he has touched at an intermediate port, for the purpose of 
greater supposed security, and for transshipment. His char- 
acter of hostility exists as much in the one case as in the 
other, and it is only when he has arrived in the country in 
which he is to exercise his office, that this character of hostil- 
ity ceases, and that of a " wwc?c?/e-man," entitled to peculiar 
privileges, attaches to him, and the neutral territory protects 
him. But if he is received on board at a neutral port, with no 
circumstances to excite suspicion that any character of hostil- 
ity attaches to him, that may well affect the question whether 
the vessel is liable to confiscation. 

It is true that the case of the Caroline was one in which the 
question related to the carriage of despatches from the Min- 
ister and Consul of France in the United States to the govern- 
ment of France ; and it has been objected that the remarks of 
Sir William Scott on this subject were therefore mere obiter 
dicta, that is, the expression of his opinion. But he was led 
by the case to consider this very subject, and it is evident 
from the context and the citation from Vattel, that it was a 
well-considered opinion. So the text-writers, so far as they 
speak of the principle, have received it ; for they have promul- 
gated the rule, as thus stated, without doubt or question. At 
least, we have not seen or heard of anything to the contrary. 

We are aware that in the same case Sir William Scott, 
speaking of despatches, says : — 

" The neutral country has a right to preserve its relations with the 
enemy, and you are not at liberty to conclude that any communication 
between them can partake in any degree of the nature of hostility 
against you. The enemy may have his hostile projects to be attempt- 
ed with the neuti'al state ; but your reliance is on the integrity of 
that neutral state, that it will not favor nor participate in such designs, 
but, as far as its own councils and actions are concerned, will oppose 
them. And if there should be private reason to suppose that this con- 
fidence in the good faith of the neutral state has a doubtful foundation, 



57 

that is matter for the caution of the government, to be counteracted by- 
just measures of preventive pohcy, but it is no ground on which this 
court can pronounce that the neutral carrier has violated his duty by 
bearing despatches, which, as far as he can know, may be presumed to 
be of an innocent nature, and in the maintenance of a pacific connection." 

But these remarks will not apply to an ambassador for the 
first thne on his passage. If he is proceeding, in time of war, 
upon an embassy to another nation, even a neutral nation, he 
goes as a high official, to support the interest of his country 
there in relation to the war, as well as other matters, and his 
character is necessarily that of hostility. When he arrives, 
the neutral territory will protect him ; and then perhaps it 
is not to be presumed that his communications to the neutral 
government are those of hostility, and that you are to place 
reliance upon the integrity of that government. 

We have stated this matter thus at large to show that, on 
the express statement of the official organ of the Confederate 
government, these persons were not mere peaceful passengers 
on their private business, as they seem inclined to represent 
themselves in their " protest " ; and that, if they had possessed 
the official character which their commissions assumed to con- 
fer upon them, they would have been liable to capture. 

But these persons were not ambassadors ; — no question 
respecting the rights of an ambassador, or the protection of an 
ambassador, is brought directly in question by the seizure ; — 
and the case of the United States is all the stronger because 
they were not entitled to that character. 

The right to send an ambassador, and of course to confer 
the privileges of an ambassador so far as the party sending has 
the power so to do, is a national right, and not a belligerent 
right. And as neither the British government, nor any other 
government, had acknowledged the nationality of the Confed- 
erate States, the latter were not authorized to commission an 
ambassador. 

Messrs. Mason and Slidell were public agents of the Confed- 



58 

erate States of higli official standing, — commissioners, bearers 
of despatches to other agents of those States ah^eady abroad, 
and charged with other errands of hostility to the United 
States, — designated as ambassadors, but possessing neither 
the character nor the privileges of that office. The general 
question then comes, May such hostile agents of the enemy — 
proceeding from the enemy's country in an enemy's vessel, 
but, for the purpose of avoiding capture, stopping in the terri- 
tory of one neutral, and there transferring themselves to the 
vessel of another neutral — be stopped and captured while 
they, with their despatches, are on board the latter vessel, 
not having arrived at any territory occupied by that neutral ? 
This is the first general question. 

It may be admitted that there is no precedent which pre- 
cisely covers all the facts of this case ; and we are therefore 
put upon the inquiry, What is tlie true principle applicable 
to this new state of facts, and by which the question is to 
be solved ? 

Asking our readers to bear in mind what we have already 
stated in regard to the rights, duties, and obligations of neu- 
trals, we proceed to further citations from the opinions and 
judgments of Sir William Scott, expressed and rendered in 
1807, which were not only binding decisions at the time, deter- 
mining the disposition of very large amounts of property, and 
then received as sound expositions of law by the British crown 
and people, but which have since been generally regarded as 
authority by the best elementary writers in England and in this 
country.* So far as we are aware, they commanded the entire 
confidence of British statesmen and lawyers, until within per- 
haps the last thirty days. The estimation in which Sir William 
Scott was held by the British government appears from the 
fact, that he was afterward raised to the peerage, with the title 
of Lord Stowell. Our apology for occupying so much of our 

* See 3 Phill. Int. Law, 368-373 ; 1 Kent, 152, 153 ; Wheaton's Int. Law, Part 
IV. Chap. 3, Sect. 25. 



59 

space with these extracts is, that the volume in which the judg- 
ments are published is not of ready access to general readers. 
Case of the Orozembo, 6 Robinson's Adm. Rep. 430-439. 
This was a case of an American vessel, 

" that had been ostensibly chartered by a merchant at Lisbon, ' to pro- 
ceed in ballast to Macao, and there to take a cargo to America,' but 
which had been afterwards, by his directions, fitted up for the reception 
of three military officers of distinction, and two persons in civil depart- 
ments in the government of Batavia, who had come from Holland to 
take their passage to Batavia, under the appointment of the govern- 
ment of Holland. There were also on board a lady and some persons 
in the capacity of servants, making in the whole seventeen passengers." 

" Sir William Scott That a vessel hired by the enemy for the 

conveyance of military persons is to be considered as a transport subject 
to condemnation has been in a recent case held by this court, and on 
other occasions. What is the number of military persons that shall 
constitute such a case, it may be difficult to define. In the former case 
there were many, in the present there are much fewer in number ; but 
I accede to what has been observed in argument, that number alone is 
an insignificant circumstance in the considerations on which the prin- 
ciple of law on this subject is built ; since fewer persons of high quality 
and character may be of more importance than a much greater num- 
ber of persons of lower condition. To send out one veteran general of 
France to take the command of the forces at Batavia, might be a much 
more noxious act than the conveyance of a whole regiment. The 
consequences of such assistance are greater, and, therefore, it is what 
the belligerent has a stronger right to prevent and punish. In this 
instance the military persons are three ; and there are, besides, two 
other persons, who were going to he employed in civil capacities in the 
government of Batavia. Whether the principle would apply to them 
alone, I do not feel it necessary to determine. I am not aware of any 
case in which the question has been agitated ; but it appears to me, ON 
PRINCIPLE, to he but reasonable that, whenever it is of sufficient im- 
portance to the enemy that sttch persons should he sent out on the public 
service, at the public expense, it should afford equal ground of for- 
feiture against the vessel that may be let out for a purpose so intimately 
connected with the hostile operations. 



60 

" It has been argued, that the master was ignorant of the character 
of the service on which he was engaged, and that, in order to support 
the penalty, it would be necessary that there should be some proof 
of delinquency in him, or his owner. But I conceive that is not 
necessary. It will be sufficient if there is an injury arising to the 
belligerent from the employment in which the vessel is found. In 
the case of the Swedish vessel there was no mens rea in the owner, or 
in any other person acting under his authority. The master was an 
involuntary agent, acting under compulsion, put upon him by the 
officers of the French government, and, so far as intention alone is 
considered, perfectly innocent. In the same manner, in cases of bona 
fide ignorance, there may be no actual delinquency ; but if the service 
is injurious, that will be sufficient to give the belligerent a right to 
prevent the thing from being done, or at least repeated, by enforcing 
the penalty of confiscation 

" If it has appeared to he of sufficient importance to the government 
of the enemy to send them, it must he enough to put the adverse govern- 
ment on the exercise of their right of prevention" 

Case of the Atalanta, 6 Rob. Adm. Rep. 440 - 460. 

" Sir William Scott This being the fact then, that there were 

on board public despatches of the enemy, not delivered up with the 
ship's papers, but found concealed, it is incumbent on the persons in- 
trusted with the care of the ship and her cargo to discharge themselves 
from the imputation of being concerned in the knowledge and manage- 
ment of this transaction 

"Not to have pointed them out to the attention of the captors 
amounts to a fraudulent dissimulation of a fact, which, by the law of 
nations, he was bound to disclose to those who had a right to examine^ 
and possess themselves of all papers on board. 

" That the simple carrying of despatches between the colonies and 
the mother country of the enemy is a service highly injurious to the 
other belligerent, is most obvious It is not to be argued, there- 
fore, that the importance of these despatches might relate only to the 
civil wants of the colony, and that it is necessary to show a military ten- 
dency ; because the object of compelling a surrender being a measure of 
war, whatever is conducive to that event must also be considered, in the 
contemplation of law, as an object of hostility, although not produced 



61 . 

by operations strictly military. How is this intercourse with the mother 
country kept up in time of peace ? By ships of war, or by packets in 
the service of the state. If a war intervenes, and the other bellige- 
rent prevails to interrupt that communication, any person stepping in to 
lend himself to effect the same purpose,.under the privilege of an osten- 
sible neutral character, does in fact place himself in the service of the 
enemy state, and is justly to be considered in that character. Nor let 
it be supposed that it is an act of light and casual importance. The 
consequence of such a service is indefinite, infinitely beyond the effect 

of any contraband that can be conveyed 

" Unless, therefore, it can be said that there must be a plurality of 
ofiences to constitute the delinquency, it has already been laid down by 
the Superior Court, in the Constitution, that fraudulent carrying the 
despatches of the enemy is a criminal act, which will lead to condemna- 
tion. Under the authority of that decision, then, I am warranted to 
hold, that it is an act which will affect the vehicle, without any fear of 
incurring the imputation, which is sometimes strangely cast upon this 
court, that it is guilty of interpolations in the laws of nations. If the 
court took upon itself to assume principles in themselves novel, it might 
justly incur such an imputation ; but to apply established principles to 
new cases cannot surely be so considered. All law is resolvable into 
general principles. The cases which may arise under new combinations 
of circumstances, leading to an extended application of principles, an- 
cient and recognized by just corollaries, may be infinite ; but so long as 
the continuity of the original and established principles is preserved 
pure and unbroken, the practice is not new, nor is it justly chargeable 
with being an innovatio7i on the ancient law; when, in fact, the court 

does nothing more than apply old principles to new circumstances 

" To talk of the confiscation of the noxious article, the despatches, 
which constitutes the penalty in contraband, would be ridiculous. 
There would be no freight dependent on it, and therefore the same 
precise penalty cannot, in the nature of things, be applied. It becomes 
absolutely necessary, as well as just, to resort to some other measure 

of confiscation, which can be no other than that of the vehicle 

" The general rule of law is, that where a party has been guilty of 
an interposition in the war, and is taken in delicto, he is not entitled 
to the aid of the court to obtain the restitution of any part of his 
property involved in the same transaction. It is said that the term 



» 62 

' interposition in the war ' is a very general term, and not to be loosely 
applied." 

Case of the Susan, 6 Rob. Adm. Rep. 461, note. 

" The Susan, an American vessel, captured on a voyage from Bor- 
deaux to New York, having on board a packet addressed to the Pre- 
fect of the Isle of France (of which it did not appear that it con- 
tained more than a letter, providing for the payment of that officer's 
salary). The master had made an affidavit, averring his ignorance 
of the contents, and stating that the packet was delivered to him by 
a private merchant, as containing old newspapers and some shawls, 
to be delivered to a merchant at New York. The insignificance of 
such a communication, and its want of connection with the political 
objects of the war, were insisted upon. But the court overruled that 
distinction, under observations similar to those above stated ; and on 
the plea of ignorance observed, that, without saying what might be the 
effect of a case of extreme imposition practised on a neutral master, 
notwithstanding the utmost exertions of caution and good faith on his 
part, it must be taken to be the general r.ule, that a master is not at 
liberty to aver his ignorance, but that, if he is made the victim of 
imposition, practised on him by his private agent, or by the govern- 
ment of the enemy, he must seek for his redress against them." 

Case of the Caroline, (from which citations have already 
been made,) 6 Rob. Adm. Rep. 461-470. 

" This was a case of the same general class as the preceding, on the 
question of despatches, found on board of an American ship, which had 
been captured with a cargo of cotton and other articles, on freight on a 
voyage from New York to Bordeaux. In this case the despatches 
were those of the French Minister and the French Consul in Amer- 
ica, going to the departments of government in France." 

" Sir W. Scott In this case a distinction was taken, very briefly, 

in the original argument, which I confess struck me very forcibly at the 
moment, that carrying the despatches of an ambassador, situated in a 
neutral country, did not fall within the reasoning on which the general 
principle is founded ; and I cannot but say, that the further argument 
which I have heard on that point, and my own consideration of the 



63 

subject, have but confirmed the impression which I then received of 
the solidity of this distinction 

" It has been asked, What are despatches ? To which, I think, this 
answer may safely be returned : that they are all official communica- 
tions of official persons on the public affairs of the government. The 
comparative importance of the particular papers is immaterial, since 
the court will not construct a scale of relative importance, which in 
fact it has not the means of doing, with any degree of accuracy, or 
with satisfaction to itself. It is sufficient, that they relate to the public 

business of the enemy, be it great or small It is not to be 

said, therefore, that this or that letter is of small moment ; the true 
criterion will be, Is it on the public business of the state, and passing 
between public persons for the public service ? That is the question. 

But if the papers so taken relate to public concerns, be they 

great or small, civil or military, the court will not split hairs, and con- 
sider their relative importance 

" The circumstances of the present case, however, do not bring it 
within the range of these considerations, because it is not the case 
of despatches coming from any port of the enemy's territory, whose 
commerce and communications of every kind the other belligerent has 
a right to interrupt. They are despatches from persons who are in a 
peculiar manner the favorite objects of the protection of the law of 
nations, ambassadors, resident in a neutral country, for the purpose 
of preserving the relations of amity between that state and his own 
government 

"It has been argued truly, that, whatever the necessities of the 
negotiation may be, a private merchant is under no obligation to be 
the carrier of the enemy's despatches to his own country. Certainly 
he is not: and one inconvenience, to which he may be held fairly 
subject, is that of having his vessel brought in for examination, and 
of the necessary detention and expense. He gives the captors an 
undeniable right to intercept and examine the nature and contents of 
the papers which he is carrying; for they may be papers of an 
injurious tendency, although not such, on any a priori presumption, 
as to subject the party who carries them to the penalty of confiscation, 
and by giving the captors the right of that inquiry, he must submit to 
all the inconvenience that may attend it. Ship and cargo restored 
on payment of captors' expensed 



64 

It will be found, we think, from a careful examination of 
these opinions, that the general principle applicable to the case 
is, that the subject or citizen of the neutral nation may not do 
anything directly auxiliary to the warlike purposes of a bel- 
ligerent, or, as it is expressed in other words, anything which 
has a direct tendency to promote his warlike operations ; and 
that the transportation of agents whose business is to promote 
or facilitate any hostile operations, or of despatches which 
have, or may be presumed to have, a hostile character, is a 
rendition of aid to the belligerent which justifies the capture 
of the persons and despatches, and if done with knowledge, 
actual or constructive, is such a violation of neutrality as au- 
thorizes the capture and confiscation of the neutral vessel. 

Speaking of the right of search, it has been said : " The 
only security that nothing is to be found inconsistent with 
amity and the law of nations is the right of personal visita- 
tion and search, to be exercised by those who have an interest 
in making it." We have here another expression of the gen- 
eral principle which regulates neutral rights and duties. It is 
not merely that the neutral is not warranted in carrying this 
or that article, or this or that person. He is not to carry any- 
thing which is inconsistent with the amity which subsists 
between his nation and the belligerent, and which he should 
maintain toward the belligerent. * 

Having ascertained the principles which are applicable, we 
turn again to the facts of this case. Probably no one doubts 
that Messrs. Mason and Slidell were the public agents of the 
Confederate States, charged with all manner of duties of a bel- 
ligerent character. But Great Britain may reasonably ask for 
some evidence of the fact, as a justification for their removal 
from the Trent. The proof will doubtless be found to be 
abundant, but our space permits only two or three sugges- 
tions. In the first place, there is the message of Mr. Davis, in 
which he states that they are commissioned, and speaks of 
them as " Ministers," showing them to be public agents for 



65 

the promotion of the interests of the revolutionary govern- 
ment. 

In the next place, there is a conclusive presumption that 
their agency was of a belligerent character, because the people 
of the Confederate States, being in rebellion, waging a civil 
war, and acknowledged only as a belligerent power, whatever 
is to be done for their success is necessarily of a belligerent 
character. The voyage of their agents to Europe was " di- 
rectly auxiliary to the warlike purposes " of the Confederacy, 
and as hostile as if they had been officers or soldiers on their 
way to aid the enemy. An attempt merely to procure an ac- 
knowledgment of the independence of the Confederate States, 
while the United States are surrounding them with forces by 
land and sea, is of itself an act of hostility to the United 
States. The object could only be encouragement and aid in 
the prosecution of the war, as there is no practical indepen- 
dence. 

Similar remarks apply to the despatches. That such docu- 
ments were on board is not now concealed. The failure of 
Captain Wilkes to find them has been a matter of exultation. 
Lieutenant Fairfax was not bound to search for them after the 
captain of the Trent refused to show his passenger list or to 
give any information. He might well suppose that they were 
then beyond reasonable search, perhaps concealed by some of 
the ladies connected with the agency, in what the Boston Post, 
speaking of the secret transmission of traitorous correspond- 
ence by Secession ladies in the vicinity of Washington, 
termed " the holy precincts of their nether garments." The 
Confederate States had no minister, nor any consul, in Eu- 
rope ; but they had agents there actively attempting to pro- 
cure an acknowledgment of their independence, and engaged 
in purchasing and transmitting munitions of war to the South- 
ern ports. The despatches, then, must be presumed to relate 
to these subjects. 

The fact that the voyage of the neutral vessel was from one 
9 



66 

neutral port to another would not have exempted these per- 
sons from capture, even if they had been ambassadors from a 
recognized nation, their mission being of a hostile character. 
A fortiori, it cannot exempt them when they are mere agents. 
The character of hostility which necessarily attaches to them 
as the public agents of a mere belligerent power, proceeding 
with despatches which from the nature of the case must be 
presumed to be to hostile agents and for hostile purposes, 
shows a right to capture them, even if an ambassador might 
be exempted on such a voyage because he was a " middle- 
man." We have the distinct opinion of Sir William Scott that 
the transportation of civilians may be ground of forfeiture. 

The neutral vessel was rendering aid in the accomplish- 
ment of these hostile purposes, just as much as she would 
have been if her voyage had been direct from the belligerent 
por.t. The neutral right, therefore, cannot protect the hostile 
agent, whether there was or was not knowledge. The want 
of knowledge might protect the vessel. But here was ample 
evidence to charge the captain of the Trent with full knowl- 
edge of the character of hostility ; and it may probably be 
shown that the embarkation at Havana was with sufficient 
pomp and circumstance to constitute plenary evidence, if 
there were no other.* 

The Trent was a private passenger packet, with the advan- 
tage of a contract to carry the mails. She was a common 
carrier of passengers, and perhaps of goods also, but had no 
more of the character of a government vessel than the rail- 
road car which carries the mail and the mail-agent, under a 
contract with the postmaster-general, has the character of a 
government vehicle. She was therefore liable, under the 
circumstances, to capture, and to confiscation also. 

But here comes another, and it would seem, jfrom recent 
suggestions, the main point to be considered. The Trent was. 

* See Appendix, Note B. 



67 

not captured. It is said that for this reason the proceedings 
are all irregular, and that a demand for a delivery of the ^ 
prisoners is to be made by the British government, founded 
upon the neglect to make the capture, and the consequent 
lack of any proof of a right to take the persons. This is quite 
too narrow a view of the matter, and we shall not believe, until 
we have demonstrative assurance, that the law officers of the 
Crown will place themselves upon such a small and slippery 
foundation. We shall not enlarge upon the ill grace with 
which Great Britain would urge the objection, not that 
Mason and Slidell could not be taken, but that Captain 
Wilkes did not capture the steamer, send her in for trial and 
confiscation, and in so doing delay her Majesty's mails, and de- 
range the business of all the passengers and others concerned 
in the regular trip of the vessel, — that there was therefore 
no adjudication of a prize court to show that the persons could 
be captured, and no other evidence would be received. Nor 
need we show what a gross outrage it would be to fasten a 
quarrel upon the nation whose officer had been guilty of such 
an act of comity and favor. If blood ever cries to Heaven for 
vengeance, it would be the blood shed in a war having such a 
foundation. And if all Christendom did not cry, Shame ! it 
would show that the part of it which failed in the performance 
of that duty to humanity had lost all consciousness of the 
difference between right and wrong. Such a failure to do 
Great Britain an injury may possibly be made a pretext for 
war. It can never be the foundation of a point of honor, 
requiring an apology. 

But it is argued, that in no other way than by sending in 
the vessel can it be shown by regular proof that the right to 
seize these persons existed ; and therefore, that, by reason of 
the failure to send in the vessel, we cannot establish the right 
of seizure. It is alleged that it has always been the law of 
the world, that every cruiser making a seizure on board of a 
vessel shall bring the vessel in, and subject the lawfulness of 



68 

tlie seizure to adjudication in a prize court ; and that there is 
one excuse only, and that is a want' of force on the part of 
the captors to man the prize. Very well, we have one case, 
then, in which it is not necessary to establish the right to seize, 
by the decision of a prize court. Now suppose that Captain 
Wilkes had seized the despatches, and, taking them and 
Messrs. Mason and Slidell on board of the San Jacinto, (as 
we suppose he had a right to do, for safety, if he had a right 
to seize the Trent,) had then put a prize crew on board of her, 
and that she had afterward foundered at sea, or been cap- 
tured by a Confederate privateer. The proceedings in ad- 
miralty for confiscation are in rem; and the thing being gone, 
no evidence of the right to seize could be had through the 
adjudication of a prize court. This would not have discharged 
the persons, nor forfeited the right to withhold the despatches. 
Here, then, seems to be another case. 

We readily admit that the officer making a seizure cannot 
confiscate the property. If a judgment of confiscation is 
sought, the property must be libelled. The vessel is sent in 
as prize, and because she is prize, and is to be disposed of as 
prize ; and not because she is necessary as evidence. Evidence 
other than that found on board the vessel may be received. 
(6 Robinson, 351, Case of the Romeo.) 

But we have seen by the opinion of Sir William Scott, that 
despatches are not the subject of confiscation ; and it is at least 
equally clear that Messrs. Mason and Slidell are not so. If 
the vessel had been sent in, there could not have been any pro- 
ceeding in the prize court against them or the despatches, and 
of course no judgment against either. It is true that, the vio- 
lation of neutrality by the transportation of the persons and 
of the despatches being the alleged ground of the seizure 
and of the claim of forfeiture, the question whether the per- 
sons were to be regarded as hostile agents, whether the de- 
spatches were of a hostile character, and all other questions 
affecting the right to seize, would be directly before the court. 



69 

and would be determined there, /or the purposes of that case ; 
that is, for the purpose of deciding- whether the vessel was 
liable to confiscation or seizure, but no further. The judgment 
of the prize court would not operate upon the persons or papers. 
While, upon the ordinary principles of law, in the absence 
of fraud or gross mistake, Great Britain would be bound to 
respect and abide by the decree of the court, so far as regarded 
the vessel, as the United States have done in relation to the 
decisions of Sir William Scott, there would be nothing in the 
judgment of the court to prevent that government from claim- 
ing of the United States the persons and papers, on evidence 
to be adduced in support of the claim, if it was believed that 
the opinion of the prize court was erroneous. 

The distinction between evidence necessary to prove an 
issue, and the matter in issue, is familiar to every sound law- 
yer. A man is indicted for stealing the property of A. B., and 
in order to procure a conviction it must be proved, to the sat- 
isfaction of the jury, that the property alleged to have been 
stolen was the property of A. B., and this being done, the de- 
fendant is convicted. But this will not prevent C. D. from 
afterward sustaining a suit, to recover the property or its 
value, on evidence that it in fact belonged to him. It may be 
said that the reason is, that C. D..was not a party to the pro- 
ceedings under the indictment, and so not bound by the 
proceeding there ; but that in the prize court, where the pro- 
ceedings are in rem, all persons interested in the property are 
regarded as parties, and bound by the decree. Admit it. But 
they are parties only as to the matter in issue, and not as to 
the evidence ; and they are bound therefore only so far as the 
judgment goes, that is, by the confiscation of the vessel. 

We claim, then, to have shown that the seizure, and even the 
confiscation, of the vessel would have determined nothing in 
relation to Messrs. Mason and Slidell, except for the purpose 
of the inquiry. Prize or not prize ? that the judgment in the 
prize court would in no wise have operated upon them ; and 



70 

that the opinion which that court entertained, so far from be- 
ing conclusive on the British government in relation to their 
capture, would not, in a legal point of view, be even prima facie 
evidence. In a diplomatic correspondence between that gov- 
ernment and the United States, it might, if it existed, be used 
as evidence ; but other evidence would be equally admissible 
on either side. On the other hand, the judgment of the prize 
court releasing the vessel, based upon the expressed opinion 
of the judge that the persons were not liable to capture, and 
that the neutral vessel was in the regular exercise of her 
rights, while it may have furnished ground for an application 
to the government for their discharge, would not have been 
legal evidence of a right to their liberty. 

We maintain, therefore, that all questions respecting the 
legality of the seizure of persons on board of neutral vessels, 
so far as they affect the persons themselves, or the relations of 
the government to which they belong and that making the 
seizure, are either legal questions for courts of common-law 
jurisdiction, or political questions to be settled by negotiation, 
if they can be settled in that mode. 

If these positions are correct, the conclusion cannot be es- 
caped that the capture of the vessel was not necessary, either 
as matter of substance or qf form, in order to justify the cap- 
ture of the persons, '•'•hex neminem cogit ad vana sen inu- 
tilia.^^ " Utile per inutile non vitiatur." 

But it may be asked. Has the captain of a belligerent 
cruiser a right to overhaul the merchant-vessel of a neutral 
nation, and take men out of her, on the plea that they are 
enemies, without any adjudication as to the right to make the 
capture ? We answer, Certainly, if he can make proof of the 
right afterward. There can be no adjudication at the time. 
He does it on his responsibility and the responsibility of his 
government, if the right cannot be established. If he may 
seize vessel, crew, cargo, and passengers on this responsibility, 
and send them all into port, surely he may seize the hostile 



71 

passengers who give occasion for the capture. In fact, if 
Captain Wilkes had seized the vessel, it would have been his 
duty to take Messrs. Mason and Slidell on board his own 
vessel for security, and on his arrival to report, and deliver 
them into the custody of the government, which might at 
once have released them, and this without affecting the pro- 
ceedings against the vessel. 

Further, a party who has a right may waive that right ; 
certainly, if others are not thereby prejudiced. The only 
parties interested in favor of the capture of the Trent were 
the United States and the officers and crew of the San Ja- 
cinto. Captain Wilkes, in behalf of the United States, and 
for himself, his officers, and crew, waived the right to make 
the capture ; and the government has sanctioned that pro- 
ceeding. Is Great Britain prejudiced ? 

The speeches at the banquet of the Lord Mayor of London 
certainly did not indicate a rupture of the friendly relations 
between the United States and Great Britain within a very 
short period ; but it must be admitted that this furnishes no 
absolute assurance. 

If Great Britain insists upon the delivery up of the pris- 
oners, and the Cabinet at Washington surrender them upon 
the ground that the demand is a djstinct abandonment of the 
doctrines which she and her prize courts have heretofore so 
persistently maintained^ the people will acquiesce, and she 
may yet believe that she has gained nothing by the course 
thus pursued. If she demand an apology because the United 
States have merely followed out those doctrines, we venture 
the opinion that she will not get it. 



APPENDIX 



Note A. Page 32. 



The United States have for a long period, in treaties and otherwise, 
endeavored to procure the introduction of certain principles into the 
law of nations, different from those heretofore held by Great Britain, 
respecting the rights of neutrals, — among them, the principle that the 
neutral flag should cover the property of an enemy not contraband of 
war. The Congress at Paris in 1856 adopted this with other princi- 
ples ; and the United States having offered to become a party to that 
adoption, the principle may perhaps be recognized hereafter, although 
the accession of the United States to the declaration of the Congress at 
Paris has not been received. 



Note B. Page 66. 

The following extracts show that Dr. Phillimore recognizes the right 
of the belligerent to search and seize where the voyage is from one 
neutral port to another neutral port. He puts that as a case where 
there is less to excite the vigilance of the master of the neutral vessel, 
and one where some allowance should be made for any imposition prac- 
tised on him. 

" It is indeed competent to those intrusted with the care of the ship on 
board of which such despatches are found, to discharge themselves from the 
imputation of being concerned in the knowledge or management of the trans- 
action. But the presumption is strong against the ignorance of the master of 
the ship ; and when he has knowingly taken on board a packet or letter ad- 
dressed to a public ofBcer of a belligerent government, the plea of the insig- 

10 



74 

nificance of the communication, and its want of connection with the political 
objects of the war, will not avail him ; nor, except perhaps in an extreme 
case of imposition practised upon him, will the plea of ignorance of the con- 
tents of the despatches avail him : his redress must be sought against the per- 
son whose agent or carrier he was. 

" With respect to such a case as might exempt the carrier of despatches 
from the usual penalty, it is to be observed that ivJiere the commencement of 
the voyage is in a neutral country, and to terminate at a neutral port, or at a 
port to which, though not neutral, an open trade is allowed, in such case there 
is less to excite the vigilance of the master ; and therefore It may be proper 
to make some allowance for any imposition which may be practised on him. 
But where the neutral master receives papers on board in a hostile port, he 
receives them at his own hazard, and cannot be heard to avow his ignorance 
of a fact with which, by due inquiry, he might have made himself acquainted." 
— 3 Phill. Int. Law, 374 (published in 1857). 

It may be admitted that in such case, if, without knowledge on the 
part of Uie master, and with nothing to excite suspicion, he, in the or- 
dinary course of his business, carries contraband goods intended for a 
belligerent, or the officers, soldiers, agents, or despatches of a bellige- 
rent, this should not furnish cause for the confiscation of the vessel. 
But neither the fact that the immediate transit was from one neutral 
port to another, nor the want of knowledge of the master, furnishes a 
reason why the contraband goods intended for the belligerent, or the 
persons in his service, or his despatches, should have active transporta- 
tion, for the purposes of the war, by the neutral vessel, and at the same 
time immunity from capture because of her neutrality. The vessel 
cannot be regarded as the territory of the neutral under such circum- 
stances, for territory is not a vehicle of transportation. 



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